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ELEMENTS  OF  POLITICAL  SCIENCE 


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ELEMENTS  OF   ?f^ 

POLITICAL  SCIENCE 


BY 


STEPHEN  LEACOCK,  B.A.,  Ph.D. 
LiTT.D.,  LL.D.,  F.R.S.C. 

BXAD  or  THE  DEPABTMBNT  OF  ECONOMICS  AND  POLITICAI. 
BCUENCB,  MOaiI<L  UKIYBBSITT,  MONTKBAI. 


NEW  AND  ENLARGED  EDITION 


HOUGHTON  MIFFLIN  COMPANY 

BOSTON  •  NEW  YORK  •  CHICAGO  •  SAN  FRANCISCO 


Revised,  February  1921 


COPYRIGHT,  192  X,  BY  STEPHEN  LEACOCK 
Copyright,  1906  and  191 3,  by  Stephen  Lcacock 

ALL  UOHTS  UtSERVKD 


CilMBKIDGK  •  MASSACHUSBTTt 


PREFACE 


It  was  the  aim  of  the  original  edition  of  this  book  to  pre- 
sent a  survey  of  the  fundamental  principles  of  political 
science.  The  chief  object  of  the  book  was  to  discuss  the 
theory  of  government  and  not  to  present  a  mere  com- 
pendiimi  of  current  facts  and  statistics  in  regard  to  the 
governments  of  to-day.  Such  contemporary  informa- 
tion can  always  be  obtained  in  any  of  the  valuable  and 
accurate  annual  publications,  such  as  the  Statesman's 
Year-Bookf  which  are  in  general  circulation. 

In  presenting,  therefore,  a  revision  of  the  book  the 
author  has  thought  it  neither  necessary  nor  desirable  to 
disturb  the  general  plan  and  outline  of  the  work.  But  it 
is  obvious  that  the  great  changes  that  have  come  into 
the  world  during  the  last  decade,  principally  through 
the  Great  War,  have  not  only  altered  the  whole  political 
environment,  but  have  profoundly  affected  the  outlook 
of  the  theorist.  The  disasters  brought  upon  Europe 
through  the  abuse  of  autocratic  power  have  cast  suspi- 
cion upon  any  form  of  monarchy  and  hereditary  author- 
ity that  does  not  respond  to  popular  control.  On  the 
other  hand,  there  stands  as  a  warning  the  complete  col- 
lapse of  civilization  in  Russia.  The  bloodshed  and  terror 
wrought  by  the  Bolsheviki  regime  remind  us  that,  after 
all,  law  and  order,  stabihty  and  general  security  are  the 
first  requisites  of  society,  not  easily  acquired,  and,  when 
lost  in  the  tmnult  of  dissolution,  not  easy  to  regain. 
Even  democracy,  it  seems,  must  limit  its  ambitions,  or 
at  least  must  limit  the  pace  at  which  it  may  hope  to 
realize  them.  The  war,  therefore,  has  thrown  into  a  new 


vi  PREFACE 

light  the  whole  theory  of  popular  government.  Prob- 
lems that  we  had  judged  already  solved  clamor  anew  for 
a  solution.  The  errors  and  difficulties  of  the  past  are 
tevealed  again  in  the  perplexities  of  the  present.  The 
student  of  to-day  may  turn  back  to  his  Rousseau  or  his 
Montesquieu  or  even  reopen  his  Aristotle  with  an  inter- 
est that  is  no  longer  historical  curiosity,  but  an  eager 
inquiry  into  the  vital  issues  of  the  twentieth  century. 

The  time  is  ripe,  therefore,  for  a  reconsideration  of 
the  principles  of  government;  and  this  not  only  by  the 
political  philosopher,  but  by  the  citizen  and  the  man  of 
affairs.  The  world  is  shaping  itself  anew  and  we  must 
take  anxious  thought  for  the  form  of  it.  We  see  moving 
about  us  new  and  conflicting  forces.  On  the  one  hand, 
the  war  has  led  many  to  place  a  new  value  upon  national 
kinship.  To  them  it  appears  as  if  in  this  imperfect 
world,  our  soundest  rehance  must  be  placed  upon  the 
nation  as  the  pohtical  imit;  that  for  a  long  time  to  come 
the  burden  of  armament,  the  necessity  of  constant  pre- 
paredness for  war,  will  be  the  price  that  we  must  pay  for 
security  within  and  safety  from  without.  To  others  the 
lesson  of  the  hour  is  of  a  contrary  teaching:  the  civilized 
world  must  become  international  or  perish.  Armament 
and  preparedness  and  mistrust  mean  war;  and  war  under 
the  condition  of  our  scientific  and  technical  environment 
can  only  mean  a  mutual  annihilation  and  a  universal 
disaster. 

This  being  so,  the  author  of  this  book  need  offer  no 
apology  for  laying  especial  emphasis  upon  such  topics 
as  the  League  of  Nations,  and  the  whole  discussion  of 
nationalism  and  internationalism  as  factors  in  pohtical 
evolution.  Equally  evident  is  the  importance  of  the 
discussion  of  the  newer  forms  of  democracy  (direct 
government  by  popular  vote,  etc.)  that  are  appearing 


PREFACE  vii 

everjrwhere  as  an  attempt  to  meet  the  particular  prob- 
lems of  to-day.  The  author  hopes  that  the  discussion 
of  general  principles  given  in  such  a  work  as  the  present 
may  be  of  some  httle  use  as  an  aid  to  the  clearness  of 
thought  and  breadth  of  judgment  upon  which  so  much 
is  destined  to  depend. 

Stbphen  Leacock 

McOm  University,  Montreal 
June,  1921 


CONTENTS 

PART  I.    THE  NATURE  OF  THE  STATE 

^I.  PouTiCAL  Science,  the  Theoey  of  the  State 

1.  Definition  and  scx>pe  of  political  science  ....  8 

9     1^t>.]aHnn  to  OthcF  ScieUCCS 6 

S.  Meaning  of  the  state;  its  essential  attributes  ...  12 

4.  The  distinction  between  state,  society,  government, 
and  nation 15 

5.  The  state  and  a  common  faith 18 

6.  The  ideal  state 18 

n.  Origin  op  the  State;  Fallacious  Theories 

1.  Theory  of  the  social  contract 21 

2.  Application  made  of  the  theory  by  Hobbes,  Locke,  and 
Rousseau 25 

5.  Criticism  of  the  theory 29 

4.  The  theory  of  divine  origin S2 

6.  The  theory  of  force S4 

ni.  The  True  Origin  of  the  State 

1.  The  historical  or  evolutionary  view  of  the  state    .      .  38 

2.  The  patriarchal  and  matriarchal  theories        ...  39 

3.  Course  of  development:  the  Aristotslian  cycle      .      .  43 

4.  Military  and  economic  factors 44 

5.  Some  general  features  of  political  evolution  ...  45 

IV.  The  Sovereigntt  of  the  State 

1.  Analysis  of  the  conception  of  sovereignty;  meaning  of 
law  and  right 49 

2.  The  location  of  sovereignty  in  existing  governments   .  63 

3.  Criticism  of  the  doctrine  of  sovereignty;  Sir  Henry 
Maine's  objections 55 

4.  Theory  of  political  sovereignty 60 

5.  Criticism 63 

6.  Dual  or  divided  sovereignty 65 

7.  Recent  criticism  of  the  doctrine  of  sovereignty     .      .  66 

V.  The  Liberty  of  the  Individual 

1.  Formulation  of  the  idea  of  civil  liberty;  its  dependence 

on  a  coercive  sovereign  power 69 


X  CONTENTS 

2.  Special  senses  sometimes  attached  to  the  term  "lib- 
erty"        7S 

8.  Organic  theory  of  the  state 76 

4.  Criticism 78 

5.  Elaborate  analogies  of  Spencer,  Sch£ffle,etc.;  the  per- 
sonality of  the  state 80 

6.  Criticism 83 

VI.  Relation  of  States  to  One  Another 

1.  External  aspect  of  the  state;  regulation  of  its  conduct 

towards  other  states 86 

i.  Evolution  of  international  relations:  first,  second,  and 

third  periods 88 

S.  Scope  and  content  of  international  law  ....  95 

4.  Propriety  of  the  term 97 

5.  International  arbitration 100 

6.  The  League  of  Nations 105 

VII.  The  Form  of  the  State 

1.  The  classification  of  states  according  to  their  form; 
Aristotle's  divisions 112 

2.  Later  classifications;  Montesquieu,  Rousseau,  Blunt- 
schli,  etc 117 

3.  Practical  classification  of  existing  states  ....  120 

4.  The  constitution;  ^Titten  and  unwritten  constitutions  122 

5.  Origin  of  written  constitutions 124 

6.  The  distinction  between  states  with  written  and  those 
with  imwritten  constitutions  an  illusory  basis  of  di- 
vision       129 

7.  Scope  of  the  constitution 132 

8.  Amendment 134 

PART  II.    THE  STRUCTURE  OF  THE  GOVERNMENT 

I.  The  Separation  of  Powers 

1.  Nature  of  executive,  legislative,  and  judicial  power   .  141 

2.  Theory  of  the  separation  of  powers 143 

8.  Influence  of  this  theory  in  America  and  France .       .145 

4.  Extent  of  its  application  in  existing  governments .       .  147 

B.  Continental  administrative  law 150 

6.  General  criticism  of  the  theory  of  the  separation  of 

powers 151 

II.  The  Legislature 

1.  The  legislature;  general  requisites,  procedure,  etc. .      .  153 

2.^ The  bicameral  system;  reasons  for  its  adoption  .      .  158 


A 


CONTENTS  xi 

8.  Composition  of  upper  houses  ...'....  161 

4.  Distribution  of  power  between  the  two  houses  .      .      .  167 
6.  Direct  legislation;  the  initiative  and  the  referendum    .  173 

III.  The  Executive 

1.  Concentration  of  authority  the  first  requisite  of  the 
executive 183 

2.  Methods  of  appointment;  hereditary  executives   .      .  186 

5.  Elective  executives 189 

4.  Presidential  and  parliamentary  government     .      .      .  192 

6.  Subordinate  officials  of  the  executive;  the  civil  service  198 

IV.  The  Judiciary  and  the  Electorate 

1.  The  judicial  office  and  its  tenure 208 

2.  The  relation  of  the  courts  to  the  executive  and  to  the 
legislature 211 

3.  Administrative  law  and  administrative  courts       .      .  216 

4.  The  electorate:  evolution  of  universal  suffrage  in  lead- 
ing countries        .      .      .      .  • 218 

5.  Representation  of  minorities 226 

V.  Federal  Government 

1.  Importance  of  the  federal  principle;  its  historical  de- 
velopment      232 

2.  The  different  kinds  of  federations 235 

3.  Sovereignty  in  a  federal  state 238 

4.  Utility  of  the  federal  principle  in  effecting  a  compro- 
mise         241 

6.  Distribution  of  power  in  federal  states     ....  242 
6.  Conclusions 250 

VI.  Colonial  Government 

1.  The  acquisition  of  dependencies 255 

2.  Colonies  of  the  ancient  world 258 

3.  Colonial  expansion  after  the  discovery  of  the  sea 
route  tq  the  East  Indies  and  the  discovery  of  America; 
Spanish  colonial  system 259 

4.  Colonial  policy  of  England  and  France  in  the  seven- 
teenth and  eighteenth  centuries 261 

5.  The  American  Revolution 264 

6.  Alteration  of  British  colonial  policy  in  the  nineteenth 
century;  establishment  of  self-government     .       .       .  267 

7.  Present  British  system  of  colonial  administration       .  271 

8.  Imperial  federation 279 

9.  Reoent  colonial  expansion  of  European  states       .      .281 
10.  The  dependencies  of  the  United  States      .      .      .      .284 


xii  CONTENTS 

VII.  Local  Government 

1.  Local  and  central  government  distinguished        .      .  288 

2.  Areas  of  local  government;  the  United  States,  France, 
England 291 

5.  Composition  and  powers  of  local  governing  bodies; 
the  United  States 296 

4.  England S04 

6.  France 307 

6.  Prussia 810 

7.  Local  taxation;  the  property  tax  of  the  United  States  311 

8.  Systems  of  local  taxation  in  other  countries  .       .       .316 

9.  Reform  of  the  American  system 322 

Vin.  Party  Government 

1.  Conflict  of  opbion  on  the  merits  of  party  govern- 
ment     326 

2.  Origin  and  development  of  the  party  system  in  Eng- 

'       land 830 

8.  Origin  and  growth  of  political  parties  in  the  United 

States  . 332 

4.  The  organization  of  American  political  parties    .      .  335 
6.  Reform  of  the  system 839 

6.  Party  machinery  in  Great  Britain 848 

7.  The  party  groups  of  Continental  Europe      .      .      .  345 

PART  IIL    THE  PROVINCE  OF  GOVERNMENT 

T.   iNDrVIDUAIilSM 

1.  The  individualistic  theory  of  the  functions  of  gov- 
ernment        358 

2.  Individualism  as  based  on  a  theory  of  justice      .       .  855 

3.  Based  on  a  theory  of  profltability :  the  doctrine  of 
laissez-faire 358 

4.  Based  on  a  biological  analogy :  the  survival  of  the  fittest  361 

5.  Conflictmg  forces .      .      .363 

II.  Socialism 

1.  The  socialistic  theory:  its  destructive  criticism  .      .  366 

2.  The  constructive  programme  of  socialism     .      .      .  370 

8.  The  German  Social  Democrats 374 

4.  Socialism  in  England  and  America 878 

m.  The  Modern  State 

1.  The  new  environment «      .  881 

2.  Theory  of  protection  to  industry     •,      ,      ,  ""*,      .884 


CONTENTS  jdii 

8.  Modern  protective  tariffs 888 

4.  Interference  with  competitive  prices;  trust  and  rail- 
road legislation 389 

B.  Government  interference  on  behalf  of  the  working  class; 
factory  laws,  state  insurance,  and  pensions     .      .      .  397 

6.  Municipal  control 401 

Index 403 


ELEMENTS  OF  POLITICAL  SCIENCE 

PART  I 

THE  NATURE  OF  THE  STATE 


ELEMENTS  OF  POLITICAL  SCIENCE 

• 

CHAPTER  I 

POLITICAL  SCIENCE,  THE  THEORY  OF  THE  STATE 

1.  Definition  and  scope  of  political  science  —  2.  Relation  to  other 
sciences  —  3.  Meaning  of  the  state ;  its  essential  attributes  — 
4.  The  distinction  between  state,  society,  government,  and  nation 
—  6.  The  state  and  a  common  faith  —  6.  The  ideal  state. 

I.  Definition  and  scope  of  political  science.  A  treatise 
on  political  science  must  naturally  begin  with  some  dis- 
cussion as  to  the  scope  and  province  of  the  science  itself, 
and  its  relation  with  the  other  branches  of  human  knowl- 
edge of  a  kindred  character.  This  is  especially  necessary 
for  two  reasons.  In  the  first  place,  the  term  "political 
science"  has  been  used  with  a  good  deal  of  latitude,  not 
to  say  ambiguity,  both  in  colloquial  language  and  in 
scientific  discussion.  In  the  second  place,  the  relation- 
ship between  this  and  various  other  departments  of 
knowledge,  such  as  jurisprudence,  history,  and  econom- 
ics, is  an  extremely  intimate  one.  It  is  necessary,  there- 
fore, to  endeavor  as  accurately  as  may  be  to  define  the 
proper  field  of  political  science,  and  to  indicate  its  con- 
nection with  other  branches  of  learning. 

An  elaborate  definition  may  better  be  reserved  for 
later  consideration.  For  the  present  a  simple  and  con- 
venient starting-point  may  be  found  in  the  statement, 
inadequate  though  it  is,  that  political  science  deals  with 
government.  The  word  "  government,"  used  in  its 
widest  sense,  rests  on  the  fundamental  idea  of  control 


4  THE  NATURE  OF  THE  STATE 

and  obedience;  it  implies  authority,  and  a  submission 
to  that  authority.  It  thus  calls  before  our  minds  a 
phenomenon  which  may  be  considered  almost  coexten- 
sive with  human  society  as  it  at  present  exists,  and 
which  reaches  back  into  the  past  almost  as  far  as  the 
history  of  human  society  itself.  True  it  is  that  as  we 
follow  its  retreat  into  the  remote  periods  of  history,  it 
recedes  with  a  diminishing  outline  that  tends  towards 
an  unseen  vanishing-point.  But  in  this  it  only  shares 
in  a  characteristic  common  to  all  the  products  of  social 
evolution. 

Now  the  phenomenon  of  government,  as  we  view  it  in 
the  past  and  in  the  present,  shows  anything  but  a  uni- 
form appearance.  It  differs  constantly  in  its  form,  it 
differs  in  its  scope  and  purpose,  and  differs  most  no- 
tably in  the  varying  degrees  of  its  complexity.  These 
divergences  in  the  concrete  aspect  of  government  are 
seen  at  once  by  comparing  the  rude  organization  by 
which  a  primitive  pastoral  tribe  is  held  in  loose  cohesion, 
the  city-state  of  the  Greeks,  the  feudal  system  of  the 
Middle  Ages,  and  the  intricate  mechanism  of  the  modern 
national  state.  It  is  out  of  these  variations  offered  by 
the  different  types  of  human  organization  in  which  the 
common  element  of  government  is  contained  that  polit- 
ical science  arises.  In  all  branches  of  investigation  it 
is  the  diversities  and  not  the  similarities  of  observed 
phenomena  that  afford  the  primary  motive  for  specula- 
tion. In  the  physical  world  the  diversities  of  form, 
function,  and  structure  among  plants  and  animals  give 
occasion  to  the  investigations  of  the  botanist  and  the 
naturalist.  If  all  plants  and  animals  had  been  of  a  uni- 
form fashion  and  function  their  similarity  would  have 
been  accepted  as  a  matter  of  course.  It  is  the  fact  that 
this  similarity  does  not  exist  that  gives  the  initial  stim- 


THE  THEORY  OF  THE  STATE  6 

ulus  to  man's  investigations.  Similarly  in  the  domain 
of  human  institutions  the  heterogeneous  and  complex 
appearance  of  the  phenomena  in  question  affords  the 
basis  of  political  science.  Its  field  hes  in  the  exami- 
nation and  analysis  of  the  varying  forms  of  humai 
organization  in  which  the  element  of  social  control  is 
embodied. 

At  this  point  emerges  a  further  analogy  between  the 
study  of  our  physical  and  social  environment.  In  each 
case  the  phenomena  observed  are  found  to  be  in  a 
constant  state  of  change  and  movement.  New  forms 
replace  the  old,  the  whole  representing  a  graded  series 
of  ascending  complexity  in  which  higher  and  higher 
structures  correspond  to  functions  increasingly  elabo- 
rate. In  the  physical  world,  life,  from  being  simple  and 
rudimentary,  becomes  complex  and  differentiated.  New 
organs  are  developed  and  higher  functions  performed. 
In  the  superorganic  world  the  process  of  social  evolu- 
tion is  continuous.  5ere  too  are  successive  stages  of 
progress  in  which  tha  form  and  character  of  human 
institutions  undergo  an  unceasing  alteration  in  accord- 
ance with  the  changing  environment  of  social  growth. 
The  study  of  governmental  forms  must  therefore  in 
an  eminent  degree  be  a  comparative  and  historical 
study.  It  must  not  content  itself  with  a  mere  analysis 
of  poUtical  institutions  as  existing  at  any  given  point  of 
time;  it  must  take  account  of  the  process  of  change  and 
evolution  and  the  alteration  of  social  and  intellectual 
environment.  This  is  what  is  meant  by  the  statement 
that  the  investigations  of  political  science  must  be  of  a 
dynamic  and  not  a  static  character.  They  must  be 
directed  towards  the  proper  interpretation  of  move- 
ments and  tendencies  in  addition  to  the  analysis  of  the 
status  and  structure  of  existing  institutions.   The  or- 


6  THE  NATURE  OF  THE  STATE 

ganized  aspect  of  the  community,  the  state,  must  be 
treated  not  only  as  an  actuality,  but  also  as  a  product 
of  the  past,  and  as  the  basis  of  the  life  of  the  future. 

2.  Relation  to  other  sciences.  Herein  appears  the 
connection  between  history  and  political  science,  a 
connection  somewhat  difficult  to  state  in  precise  terms 
without  making  one  of  the  two  assume  a  subordinate 
character.  There  is,  indeed,  a  natural  tendency  on  the 
part  of  the  political  scientist  to  view  history  somewhat 
in  the  lifikt  of  mere  raw  material,  and  an  equally 
natural  ^^fcncy  on  the  part  of  the  historian  to  view 
political  science  somewhat  in  the  light  of  an  emanation, 
one  might  almost  say  an  excrescence,  of  history.  It 
may  with  fairness  be  said  that  the  two  studies  are 
mutually  contributory  and  complementary.  Political 
science  would  certainly  be  impossible  without  history; 
history  would  lose  its  main  significance  without  at  least 
an  unconscious  pohtical  science.  The  facts  of  history 
—  not  all  of  them,  but  such  as  are  significant  for  the 
study  of  institutions  —  constitute  a  part  of  the  ground- 
work of  political  science;  not,  it  is  to  be  noted,  the 
whole  groundwork,  for  political  science  must  also  build 
upon  ethical  and  psychological  foundations.  Thus  one 
might  be  tempted  to  employ  the  terminology  of  the 
logician  and  say  that  some  of  history  is  part  of  pohtical 
science,  the  circles  of  their  contents  overlapping  an 
area  enclosed  by  each.  Hence  it  is  that  in  the  sub- 
divisions of  political  science  offered  by  some  writers 
"historical  pohtical  science,"  or  the  history  of  pohtical 
institutions,  is  one  branch  of  the  main  subject.^  The 
connection  between  these  allied  branches  of  knowledge 
has  been  well  indicated  by  Professor  Seeley,  who  tells 
us  that  political  science  is  the  fruit  of  history,  and 

»  Compare  W.  W.  Willoughby,  The  Nature  0/  the  Stale,  chap.  i. 


THE  THEORY  OF  THE  STATE  7 

history  is  the  root  of  political  science.^  A  recent  Ameri- 
can writer  2  has  illustrated  the  relationship  in  a  still 
more  striking  manner  by  saying  that  history  offers  the 
third  dimension  of  political  science. 

But  while  commenting  on  the  intimate  interdepend- 
ence of  these  two  branches  of  learning,  their  essential 
difference  must  not  be  forgotten.  Political  science  has 
no  concern  with  history  in  its  purely  narrative  aspect; 
it  has  no  interest  in  the  mere  cumulation  of  instances; 
nor  has  it  any  interest  in  the  military,  coma^rcial,  or 
economic  aspects  of  history  as  such;  oniyBpio  far  as 
these  bear  upon  the  evolution  of  organized  social  con- 
trol, only  so  far  as  they  elucidate  the  nature  of  the 
state,  are  they  of  import  for  the  student  of  political 
science.  The  latter  must  revert  to  history  for  much  of 
the  material  of  his  study,  but  always  in  an  eclectic  or 
selective  fashion,  coordinating  his  facts  with  a  view  to 
their  special  significance.  Thus,  for  example,  the  history 
of  the  Puritan  colonies  of  North  America  is  of  primary 
interest  to  the  student  of  political  science  as  illustrat- 
ing the  growth  of  democratic  self-government,  the  pro- 
gressive application  of  the  federal  principle  of  political 
consolidation,  the  relations  of  church  and  state,  and 
the  evolution  of  written  constitutions.  The  economic 
life  of  the  colonies  is  of  only  secondary  and  indirect  im- 
portance. The  religious  controversies  of  the  period  as 
such,  the  romantic  aspects  of  the  history  of  the  time  -7- 
the  adventurous  intercourse  of  settlers  and  savages, 
the  changes  of  manners,  speech,  and  costume  occasioned 
by  the  new  environment  —  have  still  less  bearing  on  the 

^  J.  R.  Seeley,  Introduction  to  Political  Science.  Compare  also  the 
following."  "The  science  of  politics  is  the  one  science  that  is  deposited 
by  the  stream  of  history,  like  the  grains  of  gold  in  the  sand  of  a  river." 
(Lord  Acton,  The  Study  of  History.) 

«  W.  W.  Willoughby,  op.  cit. 


8  THE  NATURE  OF  THE  STATE 

problems  of  political  science.  Similarly  the  domain  of 
the  historian  has  its  distinct  limitations.  Dr.  Georg 
Jellinek  accurately  circumscribes  the  province  of  his- 
tory as  follows:  "  History  presents  to  us  not  only  facts 
but  the  casual  connection  between  the  facts.  It  differs, 
however,  from  the  theoretical  sciences  in  that  it  always 
examines  concrete  cases  of  cause  and  effect,  never 
abstract  types  and  laws.  If  the  historian  undertakes 
this  he  passes  the  bounds  of  his  own  province  and  be- 
comes a  philosopher  of  history  or  a  sociologist.  It  is 
true  that  no  historian  will  be  willing  entirely  to  forego 
this  higher  aspect  of  history,  but  there  is  no  science 
which  offers  to  its  students  a  complete  self-sufficiency."  ^ 
Political  science  stands  also  in  close  relation  to  po- 
litical economy.  The  purpose  of  the  latter  is  to  investi- 
gate "  man's  activity  in  pursuit  of  wealth."  ^  it  deals 
with  the  production  and  distribution  of  wealth  under 
the  influence  of  forces  both  material  and  psychological. 
Inasmuch  as  the  production  and  distribution  of  material 
wealth  is  very  largely  conditioned  by  the  existing  form 
of  government  and  the  institutional  basis  of  economic 
life,  the  study  of  political  economy  is  brought  into  an 
intimate  relation  with  that  of  political  science.  The 
system  of  the  English  school  of  classical  economists,  for 
instance,  is  presimied  to  flow  from  the  original  postu- 
lates of  private  individual  property,  of  unimpeded 
contract  under  a  social  sanction,  and  a  mobility  of  the 
strata  of  society  unhindered  by  non-economic  forces. 
Conversely  it  is  also  true  that  pohtical  institutions  are 

*  Recht  dea  Modemen  StaaUa,  vol.  i,  chap.  i. 

•  "Political  Economy,  or  Economics,  is  a  study  of  mankind  in  the 
ordinary  business  of  life;  it  eaamines  that  part  of  individual  and  social 
action  which  is  most  closely  connected  with  the  attainment  and  with 
the  use  of  the  material  requisites  of  well-being."  (Marshall,  Principles 
«/  Economica,  voL  i,  bk.  i,  chap,  i.) 


THE  THEORY  OF  THE  STATE  9 

greatly  affected  by  economic  circumstances.  The  par- 
ticular form  of  government  existing  at  any  period  and 
place,  and  the  direction  and  extent  of  its  activity,  are 
largely  dependent  on  the  economic  life  of  the  community 
in  question.  Thus  one  would  naturally  expect  the  po- 
litical institutions  of  a  migratory  pastoral  tribe  to 
differ  from  those  of  a  community  deriving  its  support 
from  a  fixed  form  of  agriculture,  while  each  of  them 
would  differ  in  the  form  and  character  of  its  government 
from  a  manufacturing  population  centered  in  great 
cities.  The  state,  in  a  word,  is  conditioned  by  its  eco- 
nomic environment.^  Nor  is  it  only  in  their  fundamental 
bases  that  the  sciences  of  economics  and  pohtics  stand 
in  close  relation,  for  many  specific  subjects  of  inquiry 
belong  in  a  measure  to  each  of  them.  Such  questions  as 
the  social  control  of  monopoly,  the  governmental  man- 
agement of  railroads,  and  the  municipal  ownership  of 
public  utilities  present  both  an  economic  and  a  political 
aspect.  To  the  economist  the  problem  is  one  of  eco- 
nomic efficiency  and  equitable  distribution;  to  the  stu- 
dent of  political  science  it  is  a  question  of  administrative 
organization.  2 

The  relation  of  political  science  to  various  other 
branches  may  be  discussed  more  briefly.  Constitu- 
tional law,  the  analysis  of  the  organization  of  a  par- 

1  The  line  of  thought  here  suggested  forms  the  basis  of  what  is 
called  the  materialistic  theory  of  history.   See  below,  chap.  in. 

*  The  ambiguous  relation  in  which  the  terms  "  political  science  "  and 
"political  economy"  stand  to  one  another  is  rendered  still  more  con- 
fusing by  the  divergent  usages  of  leading  American  universities.  At 
Harvard  "Economics"  is  a  subdivision  of  the  department  of  " History, 
Government,  and  Economics."  At  Yale,  "Economics"  constitutes  a 
subdivision  of  the  general  group  of  courses  entitled  "  Philosophy,  Edu- 
cation, History,  and  the  Social  Sciences."  "  Political  Science  "  is  treated 
as  forming  part  of  the  subdivisions  "Philosophy"  and  "Historj-." 
At  Chicago  "Political  Economy"  and  "Political  Science"  constitute 
separate  departments. 


10      THE  NATURE  OF  THE  STATE 

ticular  state  at  a  particular  time,  would  seem  to  be 
best  classed  as  a  subdivision  of  political  science,  or  at 
any  rate  to  cover  a  large  field  in  common  with  it. 
Opinion  might  also  differ  as  to  whether  international 
law,^  dealing  with  the  relation  of  states  with  one  an- 
other, should  more  properly  be  classed  as  an  included 
or  only  a  kindred  subject.  It  may  at  any  rate  be  said 
that  in  measure  as  international  relations  develop  into 
the  fixity  of  a  true  international  law  —  a  code  enforced 
by  a  recognized  authority  —  so  does  international  law 
become  merged  in  the  domain  of  pohtical  science.  Last 
of  all  may  be  mentioned  the  relative  position  of  political 
science  and  sociology.  Here  the  former  must  be  con- 
sidered in  the  light  of  an  included  portion  of  the  more 
general  field.  Sociology  deals  not  only  with  organized 
communities,  but  also  with  communities  in  which  the 
element  of  social  control  is  as  yet  feebly  differentiated. 
It  deals  not  only  with  the  legal  and  coercive  relation- 
ship of  man  with  his  feUows,  but  also  with  the  evolution 
and  status  of  customs,  manners,  religion,  and  economic 
life.  Most  important  is  it  to  observe  that  sociology 
treats  not  only  of  conscious,  but  also  of  unconscious 
social  activities.^    How  far  such  a  science  can  be  any- 

'  Jellinek  considers  international  law  a  branch  of  jurisprudence 
(Rechtsvrissenschaft),  which  is  itself  a  subdivision  of  political  scienoe. 

»  "Of  all  the  multifarious  projects  for  fixing  the  boundary  which 
marks  off  political  from  the  more  general  social  science,  that  seems 
most  satisfactory  which  bases  the  distinction  on  the  existence  of  a  po- 
litical consciousness.  Without  stopping  to  inquire  too  curiously  into  the 
precise  connotation  of  this  term,  it  may  safely  be  laid  down  that  as  a 
rule  primitive  communities  do  not,  and  advanced  communities  do  mani- 
fest the  political  consciousness.  Hence,  the  opportunity  to  leave  to  so- 
ciology the  entire  field  of  primitive  institutions,  and  to  regard  as  truly 
political  only  those  institutions  and  those  theories  which  are  closely 
associated  with  such  manifestation."  (W.  A.  Dunning,  History  of  Po- 
litical Theories,  Ancient  and  Mediceval,  Introduction,  xvi.)  But  com- 
pare with  this  the  following:  "Human  society  truly  begins  when  social 
consciousness  and  tradition  are  so  far  developed  that  all  social  relations 
exist  not  only  objectively  as  physical  facts  of  association,  but  subjeo- 


THE  THEORY  OF  THE  STATE  11 

thing  more  than  a  group  of  subdivisions,  or  a  name  for 
a  sort  of  general  wisdom  in  regard  to  man's  social  en- 
vironment, gained  from  specific  studies,  is  perhaps  open 
to  question.  Certainly  in  the  hands  of  many  of  its 
exponents  it  seems  to  lose  in  intensity  what  it  gains  in 
width.  Nevertheless,  if  one  accepts  the  "  science  of 
society  "  on  its  own  terms,  it  is  proper  to  consider  that 
it  includes  poUtical  science  as  one  of  its  subdivisions. 
On  this  basis  one  may  proceed  to  a  formal  definition  of 
political  science,  which  may  best  be  accepted  in  the 
form  offered  by  Paul  Janet:  "Political  Science  is  that 
part  of  social  science  which  treats  of  the  foundations 
of  the  State,  and  of  the  principles  of  government."  Be- 
side this  may  be  placed  the  definition  of  J.  K.  Blunt- 
schli,  which  draws  especial  attention  to  the  dynamic 
nature  of  the  study  involved:  "PoKtical  Science  is 
the  science  which  is  concerned  with  the  State,  which 
endeavors  to  understand  and  comprehend  the  State  in 
its  conditions,  in  its  essential  nature,  its  various  forms 
and  manifestations,  its  development."  ^ 

tively  also  in  the  thought,  feeling,  and  purpose  of  the  associated  indi- 
viduals." (Giddings,  Theory  of  Sociology,  Annals  Am.  Acad.  Pol.  and 
Sac.  Science,  1894.) 

'  For  convenient  comparison  the  following  definitions  of  allied  sci- 
ences may  here  be  noted : 

(1)  SocioLOGT.  "Sociology,  defined  as  the  science  of  social  phe- 
nomena, includes  all  of  these  social  sciences  (that  is,  economics,  politics, 
history,  etc.) ;  but  in  this  general  use  of  the  term  it  is  not  a  distinct  sci- 
ence, but  rather  the  name  for  a  body  of  knowledge,  including  several 
sciences.  The  more  definite  <»phere  of  sociology  as  a  science  is  indi* 
cated  when  we  recognize  that  each  of  the  sciences  dealing  with  social 
phenomena  involves  a  theory  ae  to  the  nature  of  society."  (A.  Fair- 
banks, Introduction  to  Sociology.)  "I  am  tempted  to  define  Sociology 
as  the  science  of  associated  humanity,  that  is,  of  humanity,  so  far  as  it 
is  united  and  so^far  as  it  is  associated."  (J.  H.  W.  Stuckenberg,  In- 
trodxiction  to  the  Study  of  Sociology.)  All  the  writers  on  sociology  dis- 
cuss its  claim  to  existence  as  a  science,  though  formal  definitions  are 
few.  Compare  Herbert  Spencer,  Study  of  Sociology,  chap,  ii;  De  Greef, 
Introduction  d  la  Sociologie,  part  i,  chap  i;  Small  and  Vincent,  IntrO" 
duction  to  the  Study  of  Society,  bk.  i,  etc. 


12  THE  NATURE  OF  THE  STATE 

3.  Meaningof  the  state;  its  essential  attributes.  Po- 
litical science,  then,  deals  with  the  state;  it  is,  in  short, 
as  it  is  often  termed,^  the  "theory  of  the  state."  The 
word  "  state  "  is  sufficiently  famiUar  to  have  been  used 
in  the  preceding  discussion  without  explanation.  It  is 
now  necessary  to  make  a  nearer  analysis  of  the  exact 
meaning  to  be  attached  to  the  term.  An  examination 
of  the  ordinary  senses  in  which  the  word  is  used  shows 
at  once  a  considerable  latitude  in  its  employment.  Thus 
when  we  speak  of  the  different  "states"  of  Christen- 
dom, or  refer  to  France,  Italy,  etc.,  as  the  leading  states 
of  Europe,  the  word  seems  roughly  to  correspond  with 
such  terms  as  "country,"  "international  power,"  etc. 
When,  on  the  other  hand,  we  talk  of  the  relations  exist- 
ing between  the  "church  and  the  state,"  we  have  no 
reference  to  international  affairs;  the  idea  imphed  is 
rather  that  of  association  or  organization.  Again,  in 
such  uses  as  The  State  and  the  Individual  (the  title  of 
a  well-known  work  on  pohtical  science  already  men- 
tioned), or  in  the  title  of  one  of  Herbert  Spencer's 
books.  The  Man  versus  the  State,  the  word  is  plainly 
used  to  imply  a  contrast  between  the  individual  citizen 
and  the  collective  aspect  of  the  community.  Finally, 
in  such  phrases  as  "  state  aid  to  the  poor,"  "  state  con- 
trol of  railroads,"  etc.,  what  is  thought  of  is  not  so 
much  the  community  collectively  as  the  special  machin- 
ery or  organized  agency  through  which  the  community 
acts. 

Out  of  the  different  elements  here  embodied  we  may 
construct  an  exact  conception  of  what  is  meant  by  the 

(2)  JuHisPRUDENCE.  Jurisprudence  is  the  "formal  science  of  those 
relations  of  mankind  which  are  generally  recoRnized  as  having  legal 
consequences.  ...  It  may  ...  be  defined  provisionally  as  the  formal 
science  of  positive  law."   (T.  E.  Holland,  Elements  of  Jurisprudence.) 

>  See,  for  example,  M'Kecboie,  Th«  State  and  the  Individual,  Introd. 


THE  THEORY  OF  THE  STATE  13 

state  in  the  technical  language  of  political  science.  It 
embodies  as  the  factors  of  which  it  is  composed: 

I.  A  territory.     T   ^i.^;.^  dLuajfe" 

II.  A  population.  [         \ 

III.  Unity.  >  ^  *   l«.^ 

IV.  Organization.H  b*^^^'^**-*)^^ 

Let  us  briefly  examine  these  in  turn.  Without  a  definite 
territory  there  can  be  no  state.  The  Jews,  being  scat- 
tered abroad  and  dissociated  from  the  occupation  and 
control  of  any  particular  territory,  do  not  constitute 
a  state.  Professor  Holland,  in  the  definition  given  in  his 
Elements  of  Jurisprvdence,  speaks  of  a  "  numerous  as- 
semblage of  human  beings  generally  occupying  a  cer- 
tain territory."  But  it  seems  advisable  to  insist  on  the 
idea  of  land  being  necessary.  Equally  necessary  is  a 
population.  It  goes  without  saying  that  an  uninhabited 
portion  of  the  earth,  taken  in  itself,  cannot  form  a  state. 
The  third  requisite  is  said  to  be  unity.  By  this  is  meant 
that  the  territory  and  population  in  question  must  form 
no  part  of  a  wider  political  unit;  nor  must  the  territory 
contain  any  portion  or  portions  which,  while  forming 
geographically  a  part  of  it,  are  not  a  part  of  it  politi- 
cally. The  island  of  Haiti  is  a  geographical  unit,  but, 
being  divided  into  the  separate  republics  of  Haiti  and 
Santo  Domingo,  does  not  present  the  unity  required 
to  constitute  a  state.  In  the  same  way  the  separate 
"  states  "  of  the  American  Union  are  not  states  in  the 
technical  sense  of  the  term,  since  each  forms  part  of 
the  single  political  entity  known  as  the  United  States. 
The  United  States  as  a  totaUty  constitutes  a  state; 

1  The  requisites  are  thus  stated  by  Bluntschli.  He  prefers  to  add 
"sovereignty,"  a  factor  which  seems,  however,  to  result  from  the  com- 
bination of  the  last  two  given  above,  and  the  nature  of  which  is  con- 
eidered  in  a  later  chapter  (part  i,  chap.  iv). 


14  THE  NATURE  OF  THE  STATE 

the  "state"  of  Massachusetts  does  not.  The  final  req- 
uisite, that  of  organization,  is  one  that  must  be  care- 
fully noted.  Even  granting  that  we  have  a  territory 
and  population  disconnected  from  the  rest  of  the  world, 
and  thus  in  a  sense  a  unit,  we  have  not  yet  a  state. 
Imagine,  for  example,  that  a  "numerous  assemblage  of 
human  beings,"  to  use  Professor  Holland's  phrase,  were 
deposited  upon  some  uninhabited  island  not  owned  or 
controlled  by  any  existing  government.  Here  we  should 
have  land  and  population  and  unity,  but  the  inhab- 
itants, having  as  yet  no  cohesion  or  connection,  would 
not  form  a  state.  Imagine,  however,  that  these  in- 
habitants, being  persons,  we  may  suppose,  accustomed 
to  live  under  a  settled  government,  should  agree  to 
form  themselves  into  an  organized  body  and  to  vest 
the  control  of  all  of  them  in  the  hands  of  certain  among 
their  number.  We  should  then  have  a  state.  Or  let  us 
imagine  a  very  different  state  of  affairs.  Suppose  that  a 
certain  nrnnber  of  the  inhabitants  were  enabled  by  their 
superior  physical  force  or  cunning  to  reduce  the  others 
to  a  condition  of  submission,  so  that  settled  relations  of 
control  and  obedience  were  established.  In  this  case  too 
there  would  be  a  state.  For  the  organization  needed  to 
constitute  a  state  need  not  be  one  established  by  mutual 
consent  or  one  of  an  equitable  nature.  The  mere  exist- 
ence of  settled  obedience  to  a  superior,  coercive  force 
is  all  that  is  required.  Any  form  of  despotism  or  tyr- 
anny which  fulfills  these  conditions  establishes  a  polit- 
ical state  just  as  much  as  does  a  government  whose 
authority  rests  on  a  general  acquiescence. 

Such,  then,  is  the  nature  of  the  state.  As  formal 
definitions  we  may  cite  the  following:  (1)  "A  state  is 
a  people  organized  for  law  within  a  definite  territory" 
(Woodrow  Wilson).^    (2)   "  The  body  or  community 

»  The  State. 


THE  THEORY  OF  THE  STATE  15 

which  thus  by  permanent  law  through  its  organs  ad- 
ministers justice  within  certain  Umits  of  territory  is 
called  a  state  "  (Theodore  Woolsey).^  A  more  elaborate 
definition,  the  full  bearing  of  which  will  appear  in  our 
discussion  of  sovereignty,  is  given  by  Professor  Holland : 
"A  state  is  a  numerous  assemblage  of  human  beings, 
generally  occupying  a  certain  territory,  amongst  whom 
the  will  of  the  majority  or  of  an  ascertainable  class  of 
persons  is,  by  the  strength  of  such  a  majority  or  class, 
made  to  prevail  against  any  of  their  number  who  op- 
pose it."  2 

•  4.  The  distinction  between  state,  society,  govern- 
ment, and  nation.  The  meaning  to  be  attached  to  the 
word  "  state  "  will  be  rendered  more  precise  by  dis- 
tinguishing it  from  "  society,"  "  government,"  and 
"  nation."  The  term  "  society  "  has  no  reference  to 
territorial  occupation;  it  refers  to  man  alone  and  not  to 
his  environment.  But  in  dealing  with  man  its  signifi- 
cance is  much  wider  than  that  of  "  state."  It  applies 
to  all  human  communities,  whether  organized  or  un- 
organized. It  suggests  not  only  the  political  relations 
by  which  men  are  bound  together,  but  the  whole  range 
of  human  relations  and  collective  activities.  The  study 
of  society  involves  the  study  of  man's  religion,  of  do- 
mestic institutions,  industrial  activities,  education, 
crime,  etc.  The  term  "  government,"  on  the  other  hand, 
is  narrower  than  "  state."  It  refers  to  the  person  or 
group  of  persons  (which  in  a  modern  comimunity  will  be 
very  numerous)  in  whose  hands  the  organization  of  the 
state  places  for  the  time  being  the  function  of  political 
control.   The  word  is  sometimes  used  to  indicate  the 

*  Political  Science. 

*  T.  E.  Holland,  Elements  of  Jurisprudence,  An  excellent  discussion 
of  the  various  definitions  of  "state"  appears  in  J.  W.  Garner,  IntrO' 
dttction  to  Political  Science,  chap.  11. 


16  THE  NATURE  OF  THE  STATE 

persons  themselves,  sometimes  abstractly  to  indicate 
the  kind  and  composition  of  the  controlUng  group.  The 
ordinary  citizens  of  a  community  are  a  part  of  the  state, 
but  are  not  part  of  the  government.  The  term  has, 
moreover,  no  reference  to  territory.  The  distinction 
will  appear  more  evident  in  our  subsequent  discussion 
of  sovereignty.^ 

In  the  next  place,  it  is  to  be  observed  that  "nation" 
and  "state"  are  two  distinct  conceptions.  The  term 
"nation,"  though  often  loosely  used,  is  properly  to  be 
thought  of  as  having  a  racial  or  ethnographical  signifi- 
cance. It  indicates  a  body  of  people  —  the  Germans, 
the  French,  the  Hungarians,  etc.  —  united  by  common 
descent  and  a  common  language.  But  such  divisions 
by  no  means  coincide  with  the  political  divisions  of  the 
civiUzed  world  into  states.  Austria-Hungary^  as  it  ex- 
isted in  1914,  constituted  a  single  state,  but  its  popula- 
tion was  made  up  of  members  of  a  great  many  different 
races.  The  political  division  of  the  civilized  world  into 
states  freely  intersects  with  the  division  into  races,  al- 
though sometimes  the  political  units  —  as  in  the  case  of 
modem  France  —  are  almost  coincident  with  the  ethno- 
graphic. The  relation  between  political  organization 
and  nationality  has  been  a  changing  one.  In  the  classi- 
cal world,  in  the  city-states  of  ancient  Greece  and  Italy, 
kinship  among  the  citizens  was  considered  an  elemental 
factor  in  the  composition  of  the  state.  In  ancient  Athens 
and  Sparta  persons  of  alien  race  were  not  considered 
as  members  of  the  political  community.   Hence  in  the 

*  Professor  Burgess  in  his  Political  Science  and  Constitutional  Law 
adopts  a  different  basis  of  distinction:  "state"  and  "government"  are 
each  made  to  refer  to  the  organs  of  social  control  and  not  to  the  terri- 
tory or  population ;  the  latter  term  designates  the  ordinary  mechanism 
of  administration,  the  former  the  supreme  body  having  absolute  legal 
power.  See  Political  Science  and  Constitutional  Law,  vol.  i. 


THE  THEORY  OF  THE  STATE  17 

political  thought  of  classical  Greece  the  conception  of 
the  state  is  limited  to  a  small  area  occupied  by  persons 
of  the  same  race.  In  the  Roman  world,  the  original 
conception  of  a  city-state  with  a  common  nationality 
was  transformed  by  the  process  of  absorption  and  con- 
quest into  the  larger  conception  of  a  world-wide  state 
and  universal  sovereignty.  Nationality  is  here  lost 
from  sight.  The  foreign  nations  occupying  the  sub- 
jugated provinces  were  recognized  by  virtue  of  the 
Emperor  Caracalla's  act  of  general  enfranchisement 
(a.d.  212)  as  citizens  of  the  universal  empire.  Such  a 
conception,  as  will  be  seen  in  a  later  chapter,  long 
survived  as  the  basis  of  European  policy,  though  exist- 
ing only  in  the  shadowy  form  of  the  titular  Holy  Roman 
Empire.  In  actual  fact,  however,  it  was  displaced  by 
other  political  conceptions.  Feudalism  brought  with  it 
the  notion  of  territorial  sovereignty  and  dynastic  su- 
premacy. A  state  became  coincident  with  the  domain 
owned,  if  one  may  use  the  term,  by  a  particular  house 
and  its  descendants,  and  quite  irrespective  of  the  na- 
tionalities of  the  subject  peoples.  States  were  formed 
out  of  communities  of  varying  nationalities  by  inherit- 
ance, by  cession,  by  marriage  of  their  sovereigns.  Wit- 
ness, for  example,  the  sovereignty  of  Henry  Hover  Anjou, 
Aquitaine,  etc.;  the  claim  of  Edward  III  to  the  crown 
of  France;  and  at  a  later  date,  the  empire  of  Charles  V, 
who  inherited  Burgundy,  Spain,  part  of  Italy,  and  va- 
rious Austrian  territories.  To  a  large  extent  this  politi- 
cal fusion  has  fortunately  been  accompanied  by  a  fusion 
of  languages,  as  in  the  amalgamation  of  modern  France. 
It  was  in  the  nineteenth  century  that  the  claim  of 
nationality  as  the  paramount  basis  of  state  organization 
strongly  asserted  itself.  The  great  political  upheaval 
consequent  upon  the  American  and  French  revolutions 


18  THE  NATURE  OF  THE  STATE 

led  to  an  intense  national  movement  in  most  parts  of 
Europe.  Under  its  influence  modem  Italy  has  been 
converted  (1815-70)  into  a  national  state.  Germany 
also  assumed  a  definite  national  form  in  the  modem 
German  Empire  (1871),  whose  boundaries,  however, 
were  not  identical  with  those  occupied  by  the  German 
people.  In  the  reconstruction  of  the  poUtical  map  of 
Europe  in  1919  the  recognition  of  racial  and  national 
claims  is  seen  in  the  creation  of  Czecho-Slovakia,  Jugo- 
slavia, and  Poland  as  independent  states.  Common 
nationahty  is,  therefore,  though  not  an  actual  requisite 
in  the  composition  of  the  state  as  it  now  exists,  a  potent 
factor  in  its  formation. 

5.  The  state  and  a  common  faith.  At  various  periods 
in  the  world's  history  we  find  the  idea  that  the  existence 
of  a  common  reUgious  faith  among  the  members  of  the 
state  is  essential  to  its  existence.  Such  was  the  domi- 
nant element  in  the  composition  of  the  ancient  Jewish 
theocracy.  In  the  period  following  the  reformation  in 
Europe  heretical  beUef  was  considered  by  both  Prot- 
estant and  Catholic  monarchies  an  offense  against  the 
state  and  was  pimished  as  such.  In  the  Puritan  colonies 
of  Massachusetts  and  New  Haven  only  the  members  of 
the  church  were  at  first  admitted  to  the  exercise  of 
pohtical  rights.  With  the  growth  of  the  doctrine  of  re- 
ligious toleration  such  a  view  of  the  state  has  passed 
away.  The  civil  authority  and  the  civil  bond  among  the 
citizens  is  dissociated  from  their  rehgion.  In  many 
countries,  however,  established  chm'ches  supported  by 
the  state  remain  as  historic  survivals  of  the  earher 
point  of  view. 

6,  The  ideal  state.  In  all  of  the  foregoing  analysis 
we  have  treated  of  the  state  as  it  actually  exists,  not 
the  state  as  it  might  be  if  viewed  in  its  perfect  form. 


THE  THEORY  OF  THE  STATE  19 

This  is  the  distinction  madQ  by  the  German  writers  * 
between  the  conception  and  the  idea  of  the  state.  The 
conception  of  the  state  at  any  particular  historical 
period  is  found  in  the  common  attributes  of  the  states 
actually  existent.  The  idea,  on  the  other  hand,  is  the 
ideal  of  perfect  form  of  which  any  actual  state  is  only 
an  approximate  reaUzation.  This  ideal  has  varied  from 
age  to  age.  To  the  Greeks  the  ideal  was  to  be  sought  in 
the  perfected  form  of  the  city-state.  In  our  own  day 
the  national  state  has  served  as  the  embodiment  of 
perfect  pohtical  organization.  But  a  wider  ideal  is  con- 
ceivable in  the  form  of  the  world-state  or  state  universal. 
The  realization  of  such  a  political  organization,  as  has 
been  said,  was  long  the  haunting  ideal  of  European 
pohcy.  We  see  it  reflected  in  the  claims  of  the  Roman 
Emperor,  in  the  less  substantial  claims  of  the  Eastern 
Emperor  at  Constantinople,  after  the  fall  of  Rome  in 
the  resuscitation  of  the  empire  by  Charles  the  Great 
(a.d.  800),  and  in  the  vague  sovereignty  of  the  Holy 
Roman  Emperor  from  that  date  until  the  aboUtion  of 
the  titular  dignity  (1806)  through  the  power  of  Na- 
poleon. The  same  ideal  hovers  before  us  as  offering  the 
goal  of  the  pohtical  organization  of  the  future.  The  de- 
velopment of  international  relations  that  could  lead  to 
such  an  end  will  be  discussed  in  a  later  chapter. 

READINGS  SUGGESTED 

Pollock,  Sir  Frederick,  History  of  the  Science  of  Politics,  chap,  l 

(revised  edition,  1916). 
Bluntschli,  J.  K.,  The  Theory  of  the  State  (translation  of  6th 

edition,  1885),  Introd.  chaps,  i,  ii,  in,  and  bk.  i,  chap.  i. 

1  See  J.  E.  Bluntschli,  Theory  of  the  Stale,  bk.  i,  chap.  i. 


20  THE  NATURE  OF  THE  STATE 

FURTHER  AUTHORITIES 

Jellinek,  G.,  Das  Recht  des  Modemen  Staates,  vol.  i  (1900). 
Willoughby,  W.  W.,  The  Nature  of  the  State  (1896). 
Seeley,  Sir  J.  R.,  Introduction  to  Political  Science  (1896). 
M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896). 
Pollock,  Sir  Frederick,  A  First  Book  of  Jurisprudence  (1896). 
Holland,  T.  E.,  Elements  of  Jurisprudence  (1888). 
Bosanquet,  B.,  The  Philosophical  Theory  of  the  State  (1899). 
Wilson,  W.,  The  State  (revised  edition,  1900). 
Woolsey,  T.,  Political  Science,  vol.  i  (1878). 
Gamer,  J.  W.,  Introduction  to  Political  Science  (1910). 
Rose,  J.  H.,  Nationality  as  a  Factor  in  Modem  History  (1916). 
Dominion,  L.,  Frontiers  of  Langtuige   and  Nationality  in 
Europe  (1917). 


CHAPTER  n 
ORIGIN  OF  THE  STATE;  FALLACIOUS  THEORIES 

1.  Theory  of  the  social  contract  —  2.  Application  made  of  the  theory 
by  Hobbes,  Locke,  and  Rousseau  —  3.  Criticism  of  the  theory  — 
4.  The  theory  of  divine  origin  —  6.  The  theory  of  force. 

1.  Theory  of  the  social  contract.  After  a  prelmiinary 
investigation  of  the  proper  province  of  political  science, 
the  topic  which  of  necessity  takes  the  first  place  in  our 
inquiry  is  that  of  the  origin  of  the  state.  How  has  it 
come  about  that  men  are  everjrwhere  found  hving  under 
some  form  of  authoritative  control?  What  is  the  origin 
of  government  and  law?  Speculation  as  to  the  begin- 
nings of  government  is  not  merely  a  matter  of  historical 
curiosity,  for  it  is  intimately  associated  with  the  more 
important  question  of  the  justification  of  government  — 
the  right  of  the  state  to  be.  The  present  subject  thus 
brings  before  us  both  an  historical  and  an  ethical  in- 
quiry —  the  investigation  of  the  facts  as  to  the  actual 
beginnings  of  poUtical  forms  and  the  discussion  of  the 
bearing  of  these  facts  on  the  question  of  the  rightfulness 
or  wrongness  of  the  existence  of  government. 

To  examine  and  reject  a  fallacious  hypothesis  is  often 
a  means  of  arriving  at  the  truth.  In  the  present  in« 
stance  a  presentation  of  some  of  the  mistaken  theories 
proposed  as  to  the  origin  of  the  state  may  aid  us  in 
moving  towards  a  correct  one.  The  different  opinions 
which  we  shall  briefly  review  have  had  such  great 
influence  in  the  formation  of  existing  poUtical  insti- 
tutions that  a  proper  understanding  of  them  is  neces- 
sary in  order  to  appreciate  the  forces  operative  in  the 


22  THE  NATURE  OF  THE  STATE 

growth  and  structure  of  modem  governments.  The 
purpose  of  the  ensuing  discussion  is  not,  therefore,  the 
merely  sophistical  task  of  demolishing  h3rpotheses  of 
straw.  The  rejection  of  what  is  false  in  the  speculative 
theories  of  the  past  will  aid  in  establishing  more  vaUd 
conclusions  on  the  residual  basis  of  what  is  true. 

Foremost  in  historical  importance  of  all  the  different 
views  concerning  the  origin  of  the  state,  is  the  theory 
of  the  social  contract.  As  old  as  political  speculation 
itself,  and  preeminent  in  its  influence,  it  stands  written 
large  upon  the  history  of  human  thought.  Postponing 
for  the  moment  the  treatment  of  the  beginnings  and 
growth  of  the  theory,  let  us  first  examine  in  broad 
outline  the  general  content  of  the  doctrine  of  the  social 
contract.  It  professes  to  offer  an  explanation  of  the 
origin  and  justification  of  government.  To  do  this  it 
starts  from  the  fundamental  assumption  that  the  past 
history  of  mankind  may  be  divided  into  two  periods, 
the  first  of  which  is  antecedent  to  the  institution  of 
government,  the  latter  subsequent  to  it.  During  the 
first  of  these  periods,  man  is  found  in  the  ".state  of 
naturCj"  uncontrolled  by  any  laws  of  human  imposition, 
and  subject  only  to  such  regulations  as  are  supposed 
to  be  prescribed  to  him  by  nature  itself.  This  code  of 
regulations,  or  rather,  since  it  is  nowhere  written  down, 
the  spirit  by  which  such  a  code  might  be  presumed  to 
be  inspired,  is  spoken  of  as  the  law  of  nature,  or  natiu-al 
law.  This  primitive  stage  of  natural  society  man  is 
presently  compelled  to  desert.  Whether  it  be  that  this 
state  is  too  idyllic  to  last,  or  whether  it  becomes  in  the 
course  of  time  and  by  reason  of  mutual  rapacity  too 
inconvenient  to  be  tolerated,  is  a  point  of  dispute 
among  the  exponents  of  the  theory  themselves.  In 
either  case  man  is  led  to  substitute  for  it  a  union  with 


ORIGIN  OF  THE  STATE  23 

his  fellow-men  in  which,  abandoning  the  isolation  of 
the  *'  natural "  individual,  all  are  joined  into  one  civil 
society  or  body  politic.  Each  now  stands  in  a  vastly 
different  relation  to  his  fellow-men.  Submitting  him- 
self to  the  joint  control  of  all,  he  receives  in  return  the 
benefit  of  the  joint  interest  of  all  in  his  protection.  To 
safeguard  the  security  of  all  members  of  the  body 
politic  (or  state),  a  code  of  law  is  enforced  by  all  against 
the  possible  rapacity  of  each.  Thus,  while  each  loses 
the  "natural  liberty"  that  he  enjoyed  in  the  ante- 
cedent state  of  nature,  he  gains  in  return  the  security 
to  which  he  is  naturally  entitled,  and  which  is  now 
guaranteed  to  him  by  the  covenant  of  all  his  fellows. 
Human  law  is  substituted  for  a  natural  law,  and  the 
individual  in  submitting  to  social  duties  finds  himself 
clothed  with  social  rights.  The  process,  or  at  any  rate 
the  result  of  it,  has  very  much  the  appearance  of  a 
contract  or  bargain  dictated  by  the  individual's  own 
interest,  an  exchange  of  obhgations  in  return  for  privi- 
leges. Whether  the  bargain  is  to  be  looked  upon  as 
one  that  actually  happened  at  a  given  time  and  place 
for  each  politically  constituted  society,  or  whether  it 
merely  expresses  the  result  or  outcome  of  a  more  grad- 
ual social  process,  is  a  matter  that  has  been  persistently 
left  in  a  half-light.  We  cannot,  therefore,  make  any 
general  statement  as  to  whether  those  who  have  de- 
fended the  idea  of  the  social  contract  have  viewed  it  as 
an  historical  fact,  or  only  as  an  interpretation  of  the 
nature  of  the  social  bond. 

Such  is  in  general  the  doctrine  of  the  social  contract. 
A  glance  at  the  growth  and  history  of  the  doctrine 
itself  may  serve  to  bring  out  more  saUently  the  nature 
of  the  argument  involved.  The  origin  of  the  theory  is 
to  be  found  in  the  philosophy  of  the  Greeks.  It  is  asso- 


24  THE  NATURE  OF  THE  STATE 

ciated  more  particularly  with  the  speculative  thought 
of  the  period  during  which  the  Greek  city-state  —  the 
organized  form  under  which  Athens  and  Sparta  reached 
their  greatest  development  —  was  falling  into  deca- 
dence. In  the  writings  of  Plato  and  Aristotle  we  find  but 
scant  sanction  for  it.  The  political  thought  of  both  of 
them  was  inspired  by  the  ideal  of  the  city-state,  whose 
importance  was  to  them  greater  than,  and  antecedent 
to,  that  of  the  individual  citizen.  The  latter,  indeed, 
only  existed  in  and  through  the  state.  The  social  bond 
with  his  fellows  was  an  essential  part  of  man's  nature. 
"  Man,"  runs  the  well-known  Aristotelian  dogma,  "  is 
a  political  animal."  Society,  therefore,  being  the  pri- 
mary consideration,  and  the  individual  existence  be- 
ing possible  only  by  means  of  it,  the  conception  of  an 
individual  dealing  in  obligations  and  privileges,  as  a 
subject  of  contract  with  society  at  large,  was  altogether 
foreign  to  the  Platonic  and  AristoteUan  system. 

With  the  Greeks  of  the  fourth  and  succeeding  cen- 
turies, however,  the  political  environment  had  alto- 
gether changed.  The  subversion  of  the  city-state  by 
the  Macedonian  and  Roman  conquests  led  the  Greek 
philosophers  to  turn  aside  from  poUtical  speculation, 
and  to  look  upon  the  political  aspect  of  the  individual 
as  merely  one  of  the  accidents  of  his  being.  In  the 
writings  of  the  Epicurean  school  we  find  the  idea  that 
laws  and  duties  imposed  on  the  individual  by  any  gov- 
ernment, whether  foreign  or  autonomous,  are  things 
which  he  accepts  for  his  own  well-being,  entering  thus 
into  a  kind  of  compact  or  understanding  with  the  pow- 
ers that  be.  On  this  foundation  grew  up  the  theory  of 
the  social  contract.  The  system  of  the  Roman  law,  one 
of  the  greatest  contributions  of  which  to  institutional 
development  has  been  to  bring  into  a  clear  light  the 


ORIGIN  OF  THE  STATE  25 

conception  of  obligation  by  contract,  supplied  a  further 
material  with  which  to  construct  the  completed  the- 
ory.^ Christianity,  indeed,  inculcating  in  its  early  teach- 
ings the  doctrine  that  all  civil  society  had  been  the  out- 
come of  human  sin,  and  that  it  was  the  duty  of  the 
Christian  to  submit  to  the  rule  of  temporal  powers  as 
a  part  of  his  abnegation  of  self,  seemed  at  first  to  run 
counter  to  the  supposedly  equitable  bargain  of  a  social 
contract.  Nevertheless,  in  the  polemics  of  the  Middle 
Ages,  during  which  the  rival  claims  of  the  Empire  and 
the  Papacy  supplied  the  basis  of  political  controversy, 
a  sort  of  meeting-point  appears  between  the  doctrine  of 
a  social  contract  and  the  early  Christian  conception  of 
the  nature  of  civil  society.  The  advocates  of  the  papal 
claim  held  that  kings  and  princes  in  general,  and  hence 
the  emperor  among  them,  held  their  ofiices  (under 
God's  sanction)  by  reason  of  a  covenant  with  the  peo- 
ple, even  as  the  elders  of  Israel  covenanted  with  King 
David.  ^  This  view,  connected  presently  with  the  earlier 
Greek  philosophy,  gave  rise  to  a  special  form  of  con- 
tract theory  in  the  idea  of  a  compact  made  by  all  the 
people  with  one  person,  a  contract  between  a  king  and 
his  subjects.  To  this  special  form  of  the  general  doc- 
trine the  name  of  "  governmental  compact " '  has  often 
been  given. 

2.  Application  made  of  the  theory  by  Hobbes,  Locke, 
and  Rousseau.  It  was  in  the  seventeenth  and  eight- 
eenth centuries,  in  consequence  of  the  religious  and 
civil  upheavals  by  which  the  political  institutions  of 
Europe  were  moulded  anew,  that  the  theory  of  contract 
obtained  its  greatest  prominence.   Hobbes  and  Locke 

*  See  in  this  connection  David  G.  Ritchie,  Danrin  and  Hegel,  with 
Pther  Philosophical  Studies  (1893). 

»  2  Samuel,  v,  3. 

•  See  W.  W.  WUloughby,  The  Nature  of  the  State  (1896),  chap.  nr. 


2«  THE  NATURE  OF  THE  STATE 

in  England  and  Jean  Jacques  Rousseau  in  France  be- 
came its  chief  exponents.  A  review  of  the  contract 
theory  as  laid  down  by  each  will  serve  to  show  it  in  its 
completed  form.  Thomas  Hobbes,  sometime  tutor  to 
Charles  II,  and  prominent  among  the  writers  of  the 
seventeenth  century  for  his  works  on  moral  and  political 
philosophy,  offers  in  his  Leviathan  (1651)  a  striking  ex- 
position of  the  contract  theory.  The  foundation  of  his 
theory  Hes  in  his  estimate  of  man's  essential  nature. 
Man,  according  to  Hobbes,  is  an  altogether  selfish  and 
self-seeking  animal.  The  sole  motive  for  his  actions 
proves  on  analysis  to  be  the  wish  to  satisfy  his  own 
appetites  and  desires;  even  such  a  quahty  as  benevo- 
lence is  seen  on  examination  to  result  from  man's  "love 
of  power  and  delight  in  the  exercise  of  it."  Compassion 
is  only  "grief  at  the  calamities  of  others  from  the  imag- 
ination that  the  hke  calamity  may  befall  ourselves." 
Man  is  therefore  by  nature  anything  but  a  social  animal ; 
indeed  he  finds  "  nothing  but  grief  in  the  company  of 
his  fellows,"  all  being  equally  rapacious  and  self-seeking. 
The  state  of  nature  is  consequently  a  state  of  war,  the 
war  of  each  against  all;  it  is  a  state  of  "continual  fear 
and  danger  of  violent  death;  and  the  life  of  man  soH- 
tary,  poor,  nasty,  brutish,  and  short."  From  this  con- 
dition man  is  driven  by  evident  necessity  to  join  himself 
with  his  fellows  under  some  common  authority,  uni- 
versal submission  to  any  form  of  control,  however 
despotic,  being  preferable  to  the  mutual  warfare  of  the 
state  of  nature.  In  the  contract  which  men  thus  make 
among  themselves  all  agree  to  submit  to  a  single  au- 
thority, which  Hobbes  interprets  to  be  that  of  a  king 
or  absolute  sovereign.  But  the  latter,  from  the  nature 
of  the  case,  though  benefited  by  the  contract,  is  not  a 
party  to  it.  Such  a  contract  thus  differs  from  the  gov- 


ORIGIN  OF  THE  STATE  27 

emmental  compact  referred  to  above  in  that  the  king, 
being  no  party  to  it,  cannot  break  it.  It  becomes  irrev- 
ocably binding  on  all  the  community  as  a  perpetual 
social  bond.  In  this  way  the  theory  is  used  by  Hobbes 
as  a  defense  of  absolute  monarchy,  the  philosopher 
appearing  as  the  theoretical  apologist  of  the  Sluart 
despotism. 

Very  different  is  the  presentation  of  the  contract  by 
Hobbes's  illustrious  contemporary  John  Locke.  With 
the  latter  the  state  of  nature  is  not  one  of  universal 
war;  it  is,  however,  inconvenient  and  unsatisfactory. 
There  is,  in  the  first  place,  the  standing  "  want  of  an 
established,  settled,  known  law,  the  *  law  of  nature ' 
being  obscured,  since  men  are  biased  by  their  interest 
as  well  as  ignorant  for  want  of  study  of  it."  Nor  is 
there  "  a  known  and  indifferent  judge,"  nor,  finally,  an 
active  power  to  punish  those  who  contravene  the  law 
of  nature.  For  these  reasons  men  are  led  to  abandon 
the  "  freedom  "  of  the  state  of  nature,  and  submit  to 
the  restraint  of  civil  society.  In  the  contract  which 
they  make,  however,  the  monarch  to  whom  they  agree 
to  submit  is  himself  a  party.  The  contract  as  presented 
by  Locke  does  not  precisely  correspond  to  the  govern- 
mental compact,  since  it  not  only  establishes  the  author- 
ity of  the  monarch,  but  also  joins  the  members  of  the 
community  by  mutual  covenant  into  a  body  pohtic.^ 
It  differs,  on  the  other  hand,  from  the  contract  of 
Hobbes  in  that  the  monarch  is  a  party  to  it,  and  holds 
his  office  only  by  virtue  of  his  compliance  with  the 
terms  of  the  contract.  Should  the  king  break  these,  the 

•  The  late  Professor  Ritchie  claimed  that  the  customary  contrast 
between  Locke  and  Rousseau  is  erroneous,  the  essence  of  Locke's  so- 
cial contract  being  the  incorporation  of  society  and  not  the  appoint- 
ment of  a  king.  See  essay,  "The  Social  Contract  Theory,"  Political 
Science  Quarterly,  1891. 


28  THE  NATURE  OF  THE  STATE 

contract  is  dissolved.  In  this  form  the  theory  is  made 
the  basis  of  a  system  of  limited  monarchy,  and  Locke 
stands  as  the  apologist  of  the  English  revolution  of 
1688.  The  charge  of  "  having  endeavoured  to  sub\rert 
the  constitution  of  the  Kingdom  by  breaking  the  orig- 
inal contract  between  King  and  people,"  which  was  the 
indictment  of  the  Convention  Parliament  against  King 
James  II,  shows  the  basis  of  Locke's  later  defense  of 
the  revolution  which  was  embodied  in  his  Treatise  on 
Government  (1690). 

Strongly  contrasted  with  each  of  these  is  the  stand- 
point of  the  great  French  writer  of  the  eighteenth  cen- 
tury, Jean  Jacques  Rousseau.  Rousseau's  book,  the 
Contrat  Social  (1762),  may  be  taken  as  the  exposition  of 
the  theory  dominant  in  the  eighteenth  century.  With 
Rousseau  the  state  of  nature  appears  as  an  era  of  almost 
idylhc  felicity.^  The  simple  savage  endowed  with  a 
health  and  vigor  as  yet  unimpaired  by  the  enervating 
influences  of  civilization  suffices  easily  for  his  own  re- 
stricted felicity.  To  this  hypothetical  state  of  nature 
Rousseau  appeals  for  the  solution  of  the  problems  of 
civilized  life  in  regard  to  education,  morals,  etc.  As  the 
numbers  of  the  race  increase,  this  primitive  condition 
becomes  no  longer  advantageous.  The  obstacles  which 
injure  man's  preservation  in  the  state  of  nature  grow 
more  powerful  than  the  forces  which  each  individual 
can  employ  to  maintain  himself  in  this  condition.  Man 
is  thus  driven  to  relinquish  his  "  natural  liberty,"  that 
rather  illusory  "  unlimited  right  to  everything  he  is 
able  to  obtain,"  and  by  a  union  with  his  fellows  to 
sujbstitute  civil  for  natural  liberty.  To  do  this  he  is 
driven  to  find  a  "form  of  association  which  may  defend 

I  Rousseau's  views  on  the  state  of  nature  are  found  in  detail  in  his 
Discoura  sur  I'lnigalUi. 


ORIGIN  OF  THE  STATE  29 

and  protect  with  all  the  force  of  the  community  the 
person  and  property  of  each  associate  and  by  which 
each,  being  united  to  all,  yet  only  obeys  himself  and 
remains  as  free  as  before."  This  is  the  social  contract, 
a  covenant  of  each  with  all.  The  king  or  monarch  (or 
governing  body  of  any  kind)  is  not  a  party  to  the  bar- 
gain, nor  is  the  tenure  of  office  of  the  ruler  or  rulers  one 
of  the  terms  of  the  contract.  The  king  is  merely  a  com- 
missioned officer  who  holds  his  position  at  the  dictates 
of  that  general  will  (volonte  ginirale)  which  emerges  as 
the  sovereign  power  in  consequence  of  the  contract. 
Any  king  is,  of  course,  deposable  if  the  general  will  de- 
mands it.  With  Rousseau  the  doctrine  of  the  social 
contract,  which  in  the  hands  of  Hobbes  was  made  a 
weapon  of  defense  for  absolutism,  and  with  Locke  a 
shield  for  constitutional  limited  monarchy,  becomes  the 
basis  of  popular  sovereignty. 

3.  Criticism  of  the  theory.  From  the  exposition  of 
the  theory,  let  us  turn  to  the  question  of  its  criticism. 
Attacked  even  in  the  eighteenth  century  by  David 
Hume,^  it  has  undergone  a  series  of  assaults  at  the 
hands  of  the  publicists  of  the  nineteenth  century,  as 
the  result  of  which  it  may  be  now  looked  upon  as  ex- 
ploded. Jeremy  Bentham  says  of  it,  "  I  bid  adieu  to  the 
original  contract  and  I  left  it  to  those  to  amuse  them- 
selves with  this  rattle  who  could  think  they  needed  it." 
J.  K.  Bluntschli,  a  Swiss,  one  of  the  most  distinguished 
writers  in  German  on  political  science  in  the  nineteenth 
century,  pronounces  the  theory  not  only  unhistorical  and 
illogical,  but  even  "in  the  highest  degree  dangerous, 
since  it  makes  the  State  and  its  institutions  the  product 
of  individual  caprice." ' 

•  Philosophical  Works  (Edinburgh,  1864),  vol.  lu,  essay  Xll. 

*  Theory  of  the  State  (1885),  bk.  iv.  chap.  ix. 


30      THE  NATURE  OF  THE  STATE 

Of  the  arguments  directed  against  the  social  contract, 
the  most  evident  and  the  most  unanswerable  is  that  the 
theory  has  no  foundation  in  history.  There  is  no  re- 
corded instance  of  a  group  of  savages,  previously  with- 
out any  pohtical  organization  or  political  ideas,  dehber- 
ately  meeting  together  to  supply  the  defect.  Nor  is  it 
rational  to  suppose  that  any  such  deliberate  first  crea- 
tion of  the  state  could  have  happened;  for  this  presup- 
poses in  the  minds  of  its  founders  the  conception  of 
social  organization  before  any  such  phenomenon  had 
existed.  They  must  have  known  what  a  government 
was  before  they  could  make  one.  As  against  this  it 
is  urged  that  history  does  furnish  us  instances  of  what 
may  be  termed  the  formation  of  a  social  contract,  not 
indeed  among  men  hitherto  ignorant  of  government, 
but  among  groups  of  people  separated  from  the  state 
under  which  they  lived,  and  desirous  of  forming  a  new 
organization  by  deUberate  action.  Most  famous  of 
these  instances  is  the  case  of  the  Puritan  emigrants  of 
the  Mayflower.  The  famihar  document  drawn  up  and 
signed  by  them  while  still  on  board  ship  runs,  "We  .  . . 
do,  by  these  presents,  solemnly  and  mutually  in  the 
presence  of  God  and  one  another,  covenant  and  com- 
bine om-selves  together  into  a  civil  body  pohtic,  for  our 
better  ordering  and  preservation."  "  When  Carlyle 
objects,"  says  Prcrfessor  Ritchie,  "  that  Jean  Jacques 
could  not  fix  the  date  of  the  social  contract,  it  would  at 
least  be  a  plausible  retort  to  say  that  the  date  was  the 
llthof  November,  1620."  ^  Further  examples  are  found 
during  the  same  era  of  American  history  in  the  Provi- 
dence agreement  (1636)  and  the  plantation  covenant 
of  New  Haven  (1638).  It  has  even  been  urged  that  the 
written  constitutions  of  the  United  States  and  its  com- 

•  Ritchie,  Political  Science  Quarterly,  1891. 


ORIGIN  OF  THE  STATE  81 

ponent  commonwealths  are  historical  instances  of  social 
contracts.  But  in  all  of  these  cases  we  have  at  best  not 
the  institution  of  a  state  among  a  people  hitherto  de- 
void of  political  organization,  but  the  establishment  of 
ft  particular  government  by  persons  already  accustomed 
to  the  rights  and  duties  of  civil  society.  If  the  social- 
contract  theory  merely  meant  that  in  some  cases  par- 
ticular governments  are  established  by  joint  and  general 
action,  it  would  be  hard  to  contradict  it. 

It  is,  however,  possible  to  abandon  the  doctrine  of  the 
social  contract  as  representing  an  historical  occurrence, 
and  yet  to  adhere  to  it  as  expressing  the  proper  inter- 
pretation of  the  relations  between  the  individual  and 
the  state.  Viewed  in  this  light  it  is  no  longer  an  histor- 
ical but  an  analytical  conception.  It  proposes  as  the 
justification  of  the  state  a  voluntary  exchange  of  serv- 
ices between  the  individual  and  the  political  community. 
The  individual  renders  obedience  and  receives  protec- 
tion. It  is  in  this  form  that  we  find  the  contract  doctrine 
maintained  by  many  poUtical  philosophers  of  the  early 
nineteenth  century.  Such,  for  instance,  is  the  stand- 
point of  Kant.^  The  contract,  he  says,  is  "not  to  be  as- 
sumed as  an  historical  fact,  for  as  such  it  is  not  possible, 
but  it  is  a  rational  idea  which  has  its  practical  reaUty  in 
that  the  legislator  may  so  order  his  laws  as  if  they  were 
the  outcome  of  a  social  contract.  The  latter  becomes  in 
consequence  '  the  criterion  of  the  equity  of  every  public 
law.'  "  2   Yet  even  as  an  ideal  of  social  relations,  the 

•  See  Kant's  treatise  On  the  Common  Saying,  etc.  A  good  exposition 
of  Kant's  views  in  regard  to  the  nature  of  the  state  is  given  by  Professor 
Paulsen,  Immanuel  Kant  (New  York,  1902),  pp.  343-61. 

*  It  is  in  this  modified  form  that  the  doctrine  of  the  social  contract 
becomes  the  basis  of  the  benefit  theory  of  taxation;  the  individual  is 
hereby  called  upon  to  contribute  to  the  public  needs  not  in  accordance 
with  hia  "faculty"  or  ability  to  contribute,  but  in  accordance  with  the 
amount  of  benefit  or  protection  that  he  receives.  lo  practice  either 


32  THE  NATURE  OF  THE  STATE 

contract  doctrine  has  been  assailed,  one  may  say  almost 
overwhelmed,  with  hostile  criticism.  The  individual, 
it  is  argued,  is  joined  to  the  state  not  by  a  voluntary 
conjunction,  but  by  an  indissoluble  bond.  The  relation 
is  a  compulsory  one.  Each  of  us  is  bom  into  the  state; 
we  are  part  of  the  state  and  the  state  is  part  of  us.  Thf 
state  is  not  a  mutual  assurance  society,  membership  in 
which  is  a  matter  that  the  citizen  may  accept  or  reject. 
Nor  is  the  true  measure  of  our  social  duties  to  be  found 
in  the  extent  of  benefit  that  we  receive  from  society. 
Our  common  experience  of  the  nature  of  the  state  in- 
dicates much  that  conflicts  with  the  narrow  view  sug- 
gested by  the  quid  pro  quo  of  a  contract  relation.  Pa- 
triotism —  the  sacrifice  of  the  individual's  interests  to 
the  claims  of  the  community  —  we  account  one  of  the 
highest  of  virtues.  We  look  to  the  state  as  the  especial 
guardian  of  the  poor  and  the  helpless.  We  call  upon  it 
to  act  not  for  the  present  generation  alone,  but  for  the 
welfare  of  those  which  are  to  come.  The  state,  in  fine, 
stands  in  its  ideal  aspect  for  the  collective  moral  effort 
of  the  whole  community.  The  line  of  thought  here  sug- 
gested finds  its  extreme  expression  in  what  is  called  the 
"  organic  theory  of  the  state,"  a  doctrine  that  will  be 
examined  in  a  later  chapter. 

4.  The  theory  of  divine  origin.  The  importance  of 
the  social-contract  theory  has  entitled  it  to  a  somewhat 
elaborate  discussion.  Of  the  other  fallacious  doctrines 
in  question,  the  two  principal  ones,  the  theory  of  the 
divine  origin  of  the  state  and  the  theory  of  force,  may 
be  more  briefly  mentioned.  The  theory  of  the  divine 
origin,  known  in  familiar  form  as  "  the  divine  right  of 
kings,"  may  now  be  regarded  as  entirely  extinct  in 

theory  would  tax  the  rich  more  heavily  than  the  poor;  but  the  fun- 
damental conceptions  of  the  relation  of  the  individiial  and  the  state 
implied  in  the  two  .theories  are  essentially  opposed. 


ORIGIN  OF  THE  STATE  33 

political  theory.  It  belongs  especially  to  the  period  of 
the  sixteenth  and  seventeenth  centuries.  Originating 
after  the  great  mediaeval  controversy  of  the  Papacy  or 
Empire  had  subsided,  it  represents  the  resistance  offered 
by  the  constituted  monarchical  governments,  to  the 
growing  ideas  of  popular  sovereignty.  Its  essential 
meaning  is  that  each  and  every  existing  state  represents 
an  institution  of  deliberate  divine  creation.  Under  this 
theory  the  government  —  or  one  may  say  the  monarch, 
since  the  doctrine  was  directed  towards  the  defense  of 
the  monarchical  system — represents  a  direct  divine 
agency  against  whom  no  supposed  principle  of  indi- 
vidual rights  can  be  vahd.  In  a  certain  sense  it  is,  of 
course,  very  generally  held  that  all  human  institutions 
represent  the  controlling  power  of  the  Deity.  But  the 
theory  of  divine  right  goes  much  farther  than  this.  It 
assumes  the  Deity  to  have  vested  political  power  in  a 
special  way,  and  by  special  intervention,  and  to  have 
seen  fit  to  deny  poUtical  supremacy  to  the  mass  of 
the  community.  Such  works  as  the  Patriarcha  of  Sir 
Robert  Filmer  (1681),  a  parasitic  apologist  of  the  later 
Stuarts,  reflect  the  theory  in  its  extreme  form,  the  pa- 
ternal power  vested  at  the  creation  in  Adam  being  here 
supposed  to  pass  by  descent  to  the  kings  and  princes  of 
Europe.  The  theory  as  such  needs  no  longer  a  serious 
refutation.  It  has,  however,  been  pointed  out  by  several 
critics  of  this  doctrine  that  it  has  left  deep  traces  in  the 
underlying  political  thought  of  European  nations.  The 
idea  of  kingship  as  having  a  peculiar  divine  sanction  — 
the  "  divinity  that  doth  hedge  a  king  "  —  is  by  no 
means  an  extinct  element  in  the  thought  of  many  people 
both  in  Great  Britain  and  Continental  Europe.* 

*  See  in  this  connection  Walter  Bagebot,  The  Englith  ConstiitUioni 
chap.  m.  See  also  J.  N.  Figgis,  TAe  Divine  Right  of  Kingt  (2d  edition, 
1914). 


SI      THE  NATURE  OF  THE  STATE 

5.  The  tiieory  of  force.  Finally,  we  may  mention, 
among  the  erroneous  doctrines  in  explanation  of  the 
origin  and  meaning  of  the  state,  the  theory  of  force. 
Here,  again,  the  same  theory  appears  both  as  an  histor- 
ical interpretation  of  the  rise  of  the  state  and  as  a  ra- 
tional justification  of  its  being.  Historically  it  means 
that  government  is  the  outcome  of  human  aggression; 
that  the  beginnings  of  the  state  are  to  be  sought  in  the 
capture  and  enslavement  of  man  by  man,  in  the  con- 
quest, and  subjugation  of  the  feebler  tribes,  and,  gener- 
ally speaking,  in  the  self-seeking  domination  acquired 
by  superior  physical  force.  The  progressive  growth 
from  tribe  to  kingdom,  and  from  kingdom  to  empire,  is 
but  a  continuation  of  the  same  process.  Such  a  point 
of  view  is  frequent  with  the  fathers  of  the  Church  and 
the  theologians  of  the  Middle  Ages,  by  whom  the  ori- 
gins of  earthly  sovereignty  are  decried  in  order  that  its 
subordination  to  the  supremacy  of  the  spiritual  power 
may  be  the  more  evident.  Gregory  VII  wrote  (a.d. 
1080),  "  Which  of  us  is  ignorant  that  kings  and  lords 
have  had  their  origin  in  those  who,  ignorant  of  God, 
by  arrogance,  rapine,  perfidy,  slaughter,  by  every  crime 
with  the  devil  agitating  as  the  prince  of  the  world,  have 
contrived  to  rule  over  their  fellow-men  with  blind  cu* 
pidity  and  intolerable  presumption?"  ^ 

In  modem  times  we  see  much  the  same  view  ad- 
vanced for  a  very  different  purpose  in  the  earlier  po- 
litical writings  of  Herbert  Spencer.*  "  Government," 
he  says,  "  is  the  offspring  of  evil,  bearing  about  it  the 
marks  of  its  parentage."  With  the  churchmen  the  tem- 
poral power  was  defamed  for  the  benefit  of  the  spiritual 
authorities;  with  Spencer  and  the  still  more  extreme 

1  Otto  Gierke,  Political  Theories  in  the  Middle  Ages,  translated  by 
Professor  Maitland  (1900). 
■  See  Social  Statics  (1869). 


ORIGIN  OF  THE  STATE  36 

writers  of  the  "  anarchistic  "  school,  the  maintenance 
of  the  rights  of  the  individual  man  is  the  object  pur- 
sued. We  find  the  theory  of  force  elaborated  in  detail 
by  Marx,  Engels,  and  the  writers  of  the  German  social- 
istic group.  Here  the  doctrine  assumes  a  slightly  dif- 
ferent form.  The  growth  of  the  state  is  to  be  attributed 
to  the  process  of  aggressive  exploitation,  by  means  of 
which  a  part  of  the  community  has  succeeded  in  de- 
frauding their  fellows  of  the  just  reward  of  their  labor. 
Existing  governments  represent  merely  the  coercive  or- 
ganization which  serves  to  hold  the  workers  in  bond- 
age.^ The  socialist  writers  have  no  fault  to  find  with 
the  abstract  existence  of  a  state  or  coercive  authority. 
Their  objection  is  directed  against  the  particular  form 
of  the  present  state,  which  they  ascribe  to  its  iniquitous 
historical  origin.  As  against  the  theory  of  force  in  gen- 
eral it  can  with  propriety  be  advanced  that  it  errs  in 
magnifying  what  has  been  only  one  factor  in  the  evo- 
lution of  society,  into  the  sole  controlling  force.  That 
government  has  in  part  been  founded  on  aggression  no 
one  will  readily  deny.  But,  as  we  shall  presently  see, 
its  institution  has  owed  much  to  forces  of  an  entirely 
different  character.  Even  a  "  population  of  devils," 
Kant  has  said,  "  would  find  it  to  their  advantage  to 
establish  a  coercive  state  by  general  consent." 

The  force  theory  has  also  played  some  part  in  politi- 
cal thought,  not  as  an  historical  account  of  the  rise  of 
the  state,  but  as  a  means  of  its  justification.  Stated  in 
its  crudest  form,  such  a  doctrine  is  equivalent  to  the 
proposition  that  might  is  right.  "  The  individual," 
writes  Jellinek,  in  elucidation  of  this  point  of  view, 
"  must  submit  himself  to  it  since  he  perceives  it  to 

*  The  historical  process  of  dispossession  is  outlined  in  the  Manifesto 
of  the  Communist  Party,  written  by  Marx  and  Engels  in  1848. 


36  THE  NATURE  OF  THE  STATE 

be  an  unavoidable  force  (Naturgewalt)."  Bluntschli 
even  maintains  that  the  doctrine  has  "  a  residuum  of 
truth,  since  it  makes  prominent  one  element  which  is 
indispensable  to  the  state,  namely  force,  and  has  a  cer- 
tain justification  as  against  the  opposed  theory  (that 
of  contract)  which  bases  the  state  upon  the  arbitrary 
will  of  individuals,  and  leads  logically  to  political  im- 
potence." ^  But  in  plain  matter  of  fact,  and  apart  from 
the  refinements  of  abstraction,  the  proposition  seems 
hopelessly  illogical.  As  was  long  ago  pointed  out  by 
Rousseau,  the  right  that  is  conferred  by  might  can 
reasonably  be  said  to  last  only  as  long  as  the  might 
which  confers  it.  Submission  to  the  state  would  there- 
fore only  be  warranted  as  long  as  one  was  unable  to 
do  anything  else  than  submit.  The  amount  of  justifica- 
tion involved  in  this  is  less  than  nothing. 

The  theory  of  force,  as  a  defense  of  the  governmental 
authority,  assumes  quite  a  different  aspect  at  the  hands 
of  Ludwig  von  Haller.  Writing  at  a  time  when  the 
great  wars  of  the  Revolutionary  and  Napoleonic  era 
had  overwhelmed  the  sanguine  outlook  of  the  eight- 
eenth century  enlightenment  in  the  disillusion  of  a 
devastated  continent,  he  represents  a  natural  revulsion 
from  the  deification  of  popular  sovereignty  towards  the 
principles  of  monarchical  authority.  With  Haller  gov- 
ernment is  based  upon  "  the  natural  law  that  the 
stronger  rules."  But  the  principle'  involved  is  one  of 
benevolence,  not  of  repression.  The  fundamental  bond 
of  human  relationship  and  social  cohesion  is  the  depend- 
ence of  the  weak  upon  the  strong.  Obedience  is  given 
on  the  one  hand,  protection  on  the  other.  We  see  this 
in  the  relation  of  parent  and  child,  husband  and  wife, 
master  and  servant.  This  is  the  true  relation  of  the 
^  Tlteory  of  the  State,  bk.  iv,  chap.  vm. 


ORIGIN  OF  THE  STATE  37 

prince  and  the  subject.  The  position  is  not  one  created 
by  a  voluntary  act;  it  is  not  a  contract;  it  is  a  part  of 
the  fundamental  order  of  the  universe.  "We  might  as 
well  say,"  Haller  contends,  "  that  there  is  a  contract 
between  a  man  and  the  sun,  that  he  will  allow  himself 
to  be  warmed  by  it."  This  universal  law  of  the  sub- 
mission of  the  weak  to  the  strong  is  thus  made  the 
basis  of  a  theory  of  absolute  monarchy  and  unlimited 
submission.  Though  clothed  in  a  benevolent  form  it 
amounts  to  the  assertion  that  sovereign  power  is  the 
disposable  property  of  the  prince.  As  such  it  needs  no 
refutation.^ 

READINGS  SUGGESTED 
Willoughby,  W.  W.,  Nature  oj  the  State  (1896),  chaps,  in,  iv, 

V,  VI. 

Rousseau,  J.  J.,  Social  Contract  (1762),  bk.  i,  chaps,  i-ix. 
Pollock,  Sir  Frederick,  History  of  the  Science  of  Politics  (1900), 
chap.  III. 

FURTHER  AUTHORITIES 

Hooker,  R.,  Ecclesiastical  Polity  (1594). 

Locke,  John,  Treatises  on  Civil  Government  (1690) 

Hobbes,  T.,  Leviathan  (1651). 

Ritchie,  D.  G.,  Darwin  and  Hegel  (1893). 

Hume,  D.,  Essays  (1741-1742). 

Graham,  W.,  English  Political  Philosophy  (1899,  Hobbes, 

Locke,  Burke,  pp.  1-174). 
Lowell,  A.  L.,  Essays  on  Government  (no.  iv),  1889. 

*  Von  Haller's  Restoration  of  Political  Science  appeared  in  six  vol- 
umes, 1816-34.  The  substance  of  his  "patrimonial  theory"  is  dis- 
cussed by  Paul  Janet,  Histoire  de  la  Science  Politique,  vol.  ii,  and  by 
C.  Merriam,  Theory  of  Sovereignty,  chap.  arv. 


CHAPTER  m 

THE  TRUE  ORIGIN  OF  THE  STATE 

1.  The  historical  or  evolutionary  view  of  the  state  —  2.  The  patri- 
archal and  matriarchal  theories  —  3.  Course  of  development:  the 
Aristotelian  cycle  —  4.  Military  and  economic  factors  —  5.  Some 
general  features  of  political  evolution. 

I.  The  historical  or  evolutionary  view  of  the  state. 

The  fallacious  theories  presented  in  the  last  chapter 
may  be  considered  to  prepare  the  way  for  a  more  correct 
estimate  of  the  origin  of  the  state.  The  view  held  by 
the  best  modem  writers  may  be  described  as  the  his- 
torical or  evolutionary  theory  of  the  state.  By  this  is 
meant  that  the  institution  of  the  state  is  not  to  be  re- 
ferred back  to  any  single  point  of  time;  it  is  not  the 
outcome  of  any  single  movement  or  plan.  The  state  is 
not  an  invention:  it  is  a  growth,  an  evolution,  the  result 
of  a  gradual  process  running  throughout  all  the  known 
history  of  man,  and  receding  into  the  remote  and  un- 
known past.  "  The  proposition  that  the  state  is  a 
product  of  history,"  says  Professor  Burgess,  "  means 
that  it  is  a  gradual  and  continuous  development  of 
hiunan  society  out  of  a  grossly  imperfect  beginning 
through  crude  but  improving  forms  of  manifestation 
towards  a  perfect  and  universal  organization  of  man- 
kind." It  is  thus  altogether  erroneous  to  think  of  man 
as  having  in  the  course  of  his  evolution  attained  to  a 
full  physical  and  mental  development,  and  then  looking 
about  him  to  consider  the  advisabihty  of  inventing  a 
government.  We  might  as  well  imagine  man,  mentally 
and  physically  complete,  deciding  that  the  time  had 
come  for  the  invention  of  language,  in  order  to  satisfy 


THE  TRUE  ORIGIN  OF  THE  STATE  39 

his  growing  need  of  communicating  with  his  fellows. 
Just  as  language  has  been  evolved  from  the  uncouth 
gibberings  of  animals,  so  has  government  had  its  origins 
in  remote  and  rudimentary  beginnings  in  prehistoric 
society.  Man's  capacity  for  associated  action  and  social 
relationships  of  all  kinds  has  proceeded  by  a  gradual 
development  parallel  with  that  of  his  physical  and  in- 
tellectual aptitudes. 

2.  The  patriarchal  and  matriarchal  theories.  This 
general  idea  or  principle  of  a  gradual  and  progressive 
evolution  seems  clear  enough.  Yet  if  we  attempt  to  go 
farther  and  map  out  the  stages  of  man's  social  develop- 
ment, the  most  serious  difficulties  are  encountered.  The 
simplest  and  earliest  method  of  offering  an  historical  ac- 
count of  the  genesis  of  social  amalgamation  was  found 
in  taking  the  family  to  represent  the  primal  unit  of 
social  history.  The  control  exercised  by  a  father  over 
his  children,  which  presently  expands  into  the  control  of 
a  patriarch  over  his  descendants,  was  supposed  to  repre« 
sent  the  origin  of  human  government.  It  indicated  at 
the  same  time  a  justification  of  the  state  as  proceeding 
from  the  purely  "  natural  "  institution  of  the  family. 
First  a  household,  then  a  patriarchal  family,  then  a 
tribe  of  persons  of  kindred  descent,  and  finally  a  nation, 
—  so  runs  the  social  series  erected  on  this  basis.  This 
attempt  to  refer  the  institution  of  government  to  the 
authority  of  an  original  father  of  a  family  is  known  as 
the  patriarchal  theory.  It  has  sought  to  defend  itself 
by  reference  partly  to  historical  instances,  partly  to 
current  facts.  We  find  it  as  early  as  in  the  writings  of 
Aristotle,  the  first  book  of  whose  Politics  contains  a 
statement  of  the  theory.  "  The  family,"  says  Aristotle 
"  arises  first; .  .  .  when  several  families  are  united,  and 
the  association  aims  at  something  mox«  than  the  supply 


40      THE  NATURE  OF  THE  STATE 

of  daily  needs,  then  comes  into  existence  the  village.  . . . 
When  several  villages  are  united  in  a  single  community 
perfect  and  large  enough  to  be  nearly  or  quite  self- 
sufficing,  the  state  (TroXi?)  comes  into  existence."  Since 
Aristotle's  time  the  same  view  has  been  presented  by  a 
variety  of  writers  as  offering  a  valid  account  of  the 
origins  of  poHtical  institutions.  The  case  of  such  com- 
munities as  the  nomadic  tribes  of  central  Asia  is  ad- 
duced in  proof  of  the  correctness  of  the  view. 

The  historical  researches  of  the  nineteenth  century, 
however,  have  rendered  it  impossible  to  accept  the 
patriarchal  theory  as  offering  a  universal  or  final  solu- 
tion of  the  problem  of  the  origin  of  government.  The 
critics  of  this  theory  have  conclusively  shown,  in  the 
first  place,  that  the  patriarchal  regime  has  not  every- 
where appeared  as  the  foundation  of  later  institutions, 
and,  in  the  second  place,  that  even  where  it  has  ap- 
peared, it  has  not  of  necessity  been  the  oldest  form  of 
social  regulation  which  may  be  traced  in  prehistoric 
times.  Such  has  been  the  substance  of  the  results 
reached  by  J.  F.  McLennan  and  others  who  have 
sought  to  substitute  a  rival  hypothesis  under  the  title 
of  the  matriarchal  theory.  By  this  is  implied  an  alto- 
gether different  social  arrangement  from  that  suggested 
by  the  supposition  of  a  primitive  family.  Previous  to 
the  patriarchal  or  family  group  men  are  found  living 
in  "  hordes  "  or  "  packs  "  in  which  the  usual  relations 
of  husband  and  wife  do  not  exist.  Relationship,  instead 
of  being  traced  through  the  father,  is  traced  in  such 
a  primitive  society  altogether  through  females.  The 
nature  of  this  relationship  may  be  understood  by  re- 
ferring to  the  account  that  is  given  by  Mr.  Edward 
Jenks  in  his  History  of  Politics.^  Mr.  Jenks  describes 

>  E.  Jenks,  History  of  PolUica  (1900). 


THE  TRUE  ORIGIN  OF  THE  STATE  41 

as  tjrpical  of  primitive  society  the  arrangement  still  ex- 
istent among  the  natives  of  AustraUa  and  the  Malay 
Archipelago.  "It  is  the  custom,"  he  says,  "to  speak  of 
the  Australian  and  other  savages  as  hving  in  tribes; .  . . 
it  would  really  be  better  to  call  it  the  'pack,'  for  it  more 
resembles  a  hunting  than  a  social  organization.  All  its 
members  are  entitled  to  share  in  the  proceeds  of  the 
day's  chase,  and,  quite  naturally,  they  camp  and  live 
together  .  .  .  but  the  real  social  unit  of  the  Australians 
is  not  the  *  tribe,'  but  the  totem  group.  . . .  The  totem 
group  is  primarily  a  body  of  persons  distinguished  by  the 
sign  of  some  natural  object  such  as  an  animal  or  a  tree, 
who  may  not  intermarry  with  one  another.  *  Snake  may 
not  marry  Snake.  Emu  may  not  marry  Emu.'  This  is 
the  first  rule  of  savage  social  organization.  .  .  .  The 
other  side  of  the  rule  is  equally  startling.  The  savage 
may  not  marry  within  his  totem,  but  he  must  marry 
into  another  totem  specially  fixed  for  him.  More  than 
this,  he  not  only  marries  into  the  specified  totem,  but  he 
marries  the  whole  of  the  women  of  that  totem  in  his  own 
generation.  ...  Of  course  it  must  not  be  supposed  that 
this  condition  of  marital  community  really  exists  in 
practice.  As  a  matter  of  fact  each  Australian  contents 
himself  with  one  or  two  women  from  his  marriage  totem." 
Under  such  a  system,  "as  far  as  there  is  any  recognition 
of  blood  relationship  at  all  it  is  through  women  and  not 
through  men."  Several  writers  on  the  matriarchal  theory 
have  considered  that  in  this  primitive  stage  of  society 
not  only  is  descent  traced  through  the  mother,  and 
property  passed  in  the  female  line,  but  the  social  group 
is  ruled  by  the  women,  not  the  men.  Such  a  condition 
of  things  is  actually  found,  for  instance,  among  the 
Hovas  of  Madagascar.  But  as  an  hypothesis  of  a  uni- 
versal social  arrangement  it  has  been  quite  refuted. 


42      THE  NATURE  OF  THE  STATE 

The  exponents  of  the  matriarchal  theory  —  under- 
stood here  m  the  narrower  sense  of  a  system  of  re- 
lationship and  not  of  female  rule  —  present  it  as  the 
universal  primitive  condition  of  mankind.  Out  of  it, 
they  tell  us,  the  patriarchal  system  has  emerged  through 
the  adoption  of  settled  pastoral  and  agricultural  habits 
in  place  of  the  purely  wandering  or  hunting  life  of  prim- 
itive man.  That  such  a  system  of  tribal  relationship  as 
is  here  described  exists  in  some  savage  communities  of 
to-day,  and  has  often  existed  in  the  past,  seems  beyond 
a  doubt.  There  does  not,  however,  seem  any  adequate 
proof  for  regarding  it  as  the  universal  and  necessary 
beginning  of  society.  Indeed  social  history  does  not 
seem  to  lend  itself  to  so  simple  a  formula  of  successive 
development.  No  single  form  of  the  primitive  family 
or  group  can  be  asserted.  Here  the  matriarchal  rela- 
tionship, and  there  a  patriarchal  regime  is  found  to  have 
been  the  rule  —  either  of  which  may  perhaps  be  dis- 
placed by  the  other.  Indeed  one  has  to  admit  the  fact 
that  there  is  no  such  thing  as  a  "beginning"  of  human 
society.  All  that  can  be  asserted  is  that  in  the  course  of 
time  the  monogamic  family  tended  to  become  the  dom- 
inant form,  though  even  until  to-day  it  has  not  alto- 
gether supplanted  other  forms  of  organization.  This 
does  not  say,  however,  that  paternal  control  of  the 
family  is  to  be  looked  on  as  the  one  necessary  beginning 
of  government  and  social  control.  For  it  must  have 
happened  in  many  instances  that  social  authority  of  a 
rudimentary  sort  existed  where  as  yet  the  monogamic 
family  was  unknown.^ 

J  ."Of  all  these  endless  controversies  in  reference  to  relationship  and 
marriage,  what  seems  to  me  most  evident  is  that  the  primitive  family 
has  assumed  various  forms,  here  monogamic,  there  polygamic,  else- 
where polyandric,  sometimes  exogamic,  sometimes  endogamic,  often 
more  authoritative,  sometimes  less  so  than  it  has  become  later." 
(G.  Tarde,  Les  Transformations  du  Droit,  chap,  m.) 


THE  TRUE  ORIGIN  OF  THE  STATE  43 

3.  Course  of  development:  the  Aristotelian  cycle. 
The  earher  stages  of  the  social  evolution  seem  therefore 
to  lend  themselves  but  poorly  to  any  scheme  of  orderly 
and  uniform  progression.  Much  the  same  difficulty 
meets  us  in  trying  to  reduce  the  successive  stages  of 
historical  development  to  any  general  plan.  It  is  clear 
that  between  the  rudimentary  form  of  social  control 
exercised  by  the  chief  of  a  primitive  tribe,  and  the  com- 
plex and  effective  organization  of  a  modern  civilized 
government,  a  vast  historical  evolution  is  apparent. 
But  to  reduce  the  stages  of  this  progression  to  a  neces- 
sary coordinated  sequence  appears  an  impossible  task. 
The  same  goal  has  been  reached  by  different  paths;  not 
all  pohtical  communities  have  passed  through  the  same 
phases  of  development.  What  has  been  the  result  of  an 
internal  evolution  in  some  has  been  effected  in  others 
by  imitation  and  adaptation  of  what  already  existed 
elsewhere.  Democratic  government  has  been  attained 
in  various  modem  states  by  quite  distinct  historical 
stages. 

Notwithstanding  these  considerations,  the  attempt  to 
reduce  political  progress  to  the  formula  of  a  prescribed 
course  of  development  has  often  been  made.  At  the 
very  outset  of  pohtical  speculation  we  have  the  famous 
"  cycle  theory  "  of  Plato,  and  a  theory  of  progressive 
change  laid  down  by  Aristotle.  Plato  thought  that  the 
natural  life  of  a  state  must  move  through  a  definite 
course  of  political  changes.  Aristocracy,  the  rule  of  the 
best,  passed  into  timocracy  —  the  government  of  honor 
or  rule  of  the  military  class.  This  changed  to  oligarchy, 
then  to  mob  rule,  and  finally  to  tyranny.^  The  views 
of  Aristotle  will  be  considered  in  some  detail  in  a  later 

*  Plato,  Republic,  bk.  vin,  §  545.  See  also  W.  A.  Dunning,  History 
of  Political  Theories  (1902),  chap.  u. 


44       THE  NATURE  OF  THE  STATE 

chapter.*  While  criticizing  Plato's  opinions  and  point- 
ing out  that  successive  political  evolutions  do  not  al- 
ways follow  the  same  order  of  development,  Aristotle 
nevertheless  considers  the  transition  from  monarchy  to 
oligarchy,  from  oligarchy  to  tyranny,  and  from  tyi-anny 
to  democracy  to  have  been  the  normal  or  usual  nature 
of  Hellenic  political  change.  ^  However  apphcable  this 
may  have  been  to  the  history  of  the  Greek  city-states 
of  the  seventh  and  following  centuries  before  the 
Christian  era,  it  cannot  be  accepted  as  any  general  or 
universal  key  to  the  political  evolution  of  later  ages.^ 

4.  Military  and  economic  factors.  Equally  attractive 
and  no  less  futile  is  the  attempt  to  ascribe  the  evolution 
of  the  modem  state  to  the  operation  of  a  single,  or  at 
any  rate  a  dominant,  motive  power.  Of  this  an  illustra- 
tion is  seen  in  the  History  of  Politics,  already  mentioned. 
"  The  origin  of  the  state,  or  pohtical  society,"  says 
Mr.  Jenks,  "  is  to  be  found  in  the  development  of  the 
art  of  war.  .  .  .  There  is  not  the  slightest  difficulty  in 
proving  that  all  political  communities  of  the  modern 
type  owe  their  existence  to  successful  warfare."  *  It  is 
of  course  quite  true  that  all  modern  pohtical  commu- 
nities have  had  to  fight  for  their  existence.  It  is  also  true 
that  certain  aspects  of  their  organization  —  standing 
armies,  conscription,  etc.  —  bear  witness  to  the  im- 
portance of  the  function  of  external  defense.  But  it  is 
not  to  be  supposed  on  this  account  that  the  type  as- 
sumed by  modem  pohtical  communities  is  to  be  ascribed 
entirely  to  the  exigencies  of  their  military  life.  Contrast 
with  this  the  standpoint  of  the  Marxian  socialists  of 
Germany,  who  tell  us  that  the  development  of  govern- 

*  See  part  i,  chap.  vii.         *  Aristotle,  Politics,  ni,  chap.  xv. 
»  See  in  this  connection  Ward  Fowler,  The  City-StaU  (1893). 

*  History  0/  Politics,  chap.  xiii. 


THE  TRUE  ORIGIN  OF  THE  STATE  45 

ment,  along  with  that  of  all  social  institutions,  is  to  be 
attributed  solely  to  economic  factors.  The  state  repre- 
sents merely  the  organization  by  which  the  property- 
owning  class  enjoys  the  fruits  of  the  laborer's  toil.^  In 
each  of  these  cases  a  single  factor  in  the  history  of  the 
modern  state  is  unduly  magnified  to  appear  as  the  para- 
mount force  in  its  development. 

5.  Some  general  features  of  political  evolution.  To 
trace  the  rise  and  growth  of  any  particular  state,  and 
the  different  phases  of  the  evolution  of  its  institutions, 
is  the  task  of  History,  not  of  Pohtical  Science.  Speaking 
of  the  state  in  general  it  is  impossible  to  predicate  any 
universal  course  of  development  or  any  necessary  series 
of  forms  which  it  must  assume.  Looking,  however,  at 
the  present  stage  that  has  been  reached  in  the  growth 
of  political  institutions,  we  may  nevertheless  indicate 
some  of  those  general  characteristics  which  the  modern 
state  has  acquired,  and  which  differentiate  it  so  entirely 
from  rudimentary  or  primitive  governments.  In  the 
first  place,  there  has  been,  speaking  broadly,  a  pro- 
gressive increase  in  the  extent  of  territory  occupied  by 
a  single  state.  At  the  dawn  of  history,  mankind  is  found 
grouped  in  vast  numbers  of  small  political  communities. 
On  the  map  of  the  world  to-day  we  find  the  greater  part 
of  the  inhabited  territory  controlled  by  a  relatively 
small  group  of  vast  states.  Of  the  52,300,000  square 
miles  which  make  up  the  land  surface  of  the  globe  the 
British  Empire  covers  12,780,381,  the  Chinese  RepubUc 
3,913,560,  and  the  United  States  3,574,658.  True,  this 
widening  area  of  the  territorial  political  unit  has  not 
been  literally  continuous.  The  Roman  Empire  was 
vastly  greater  than  such  small  modern  states  as  Greece 
or  Roumania;  while  the  resettlement  of  the  European 

'  Manifesto  0/  the  Communiit  Party  (1848). 


46  THE  NATURE  OF  THE  STATE 

political  system  after  the  Great  War  replaces  the  vast 
empires  of  Germany,  Austria-Hungary,  and  Russia,  by 
a  group  of  new  units  in  which  national  cohesion  is  pre- 
ferred to  territorial  extent.  But  the  tendency,  though 
at  times  interrupted  or  over-accelerated,  is  nevertheless 
a  leading  factor  in  the  history  of  the  world. 

In  the  second  place,  we  may  note  the  constantly  in- 
creasing fixity  and  certainty  of  the  action  of  the  state. 
The  rule  of  a  primitive  government,  especially  if  spread 
over  a  relatively  large  area,  is  imcertain  and  irregular. 
Offenses  against  its  authority  may  or  may  not  meet 
with  retribution,  and  when  it  punishes  it  acts  with  a 
vengeful  severity  arising  from  its  weakness.  In  many 
cases  its  sway  is  httle  more  than  nominal.  But  the 
progressive  development  of  political  institutions  has 
given  to  the  state  an  organization  which  insures  to  it  a 
definite  and  regular  action.  A  third  essential  feature  in 
the  development  of  the  state  is  the  growth  of  pohtical 
consciousness.  The  earlier  stages  of  social  union  are 
largely  intuitive  and  unconscious;  nor  does  there  ever 
come  a  single  point  of  time  at  which  collective  action 
suddenly  becomes  deliberate.  We  have  seen  that  the 
assumption  of  such  a  step  in  political  development  was 
one  of  the  errors  of  the  social-contract  theory.  But  in 
comparing  rudimentary  government  with  modern  civil- 
ized government  we  can  observe  the  essential  difference 
that  exists  in  this  respect. 

As  another  broad  feature  of  the  development  of  social 
structure,  the  separation  that  has  been  effected  between 
the  rehgious  and  the  political  aspects  of  society  may  be 
especially  noted.  The  early  forms  of  government  were 
theocratic.  The  functions  of  priest  and  king  were  inter- 
mingled or  closely  allied.  The  divine  law  was  presumed 
to  constitute  the  sanction  behind  human  enactments. 


THE  TRUE  ORIGIN  OF  THE  STATE  47 

Such  is  the  system  on  which  rested  the  theocracy  of  the 
Jews.  In  the  modem  state,  however  generally  it  may 
be  admitted  among  the  citizens  that  legislation  ought 
to  be  based  on  the  ethical  principles  of  Christianity,  the 
interpreters  of  the  divine  law,  in  the  form  of  the  priest- 
hood, are  not  placed  in  a  position  of  civil  authority. 
The  guidance  of  the  spiritual  and  the  political  life  of 
the  community  is  in  different  hands.  The  nature  of  the 
earUer  form  of  the  state  is  seen  in  the  survival  of  estab- 
lished or  partially  established  churches  in  Great  Britain 
and  some  other  European  countries.  The  formerly  prev- 
alent practice  of  invoking  the  authority  of  the  state  to 
suppress  heresy  and  unbelief  rested  on  the  same  con- 
ception of  organization.  The  progressive  separation  of 
church  and  state  has  been  one  of  the  evident  results  of 
political  evolution. 

The  growth  of  democratic  government,  the  partici- 
pation of  the  great  mass  of  the  people  in  political  con- 
twi,  is  the  most  important  feature  in  the  development 
of  the  state.  Democratic  government  does  not,  of 
course,  exist  in  all  the  great  civilized  states,  but  in  the 
chief  of  them  —  either  in  the  shape  of  a  republic  or 
under  the  more  or  less  nominal  semblance  of  monarchy 
—  it  has  become  an  accepted  fact.  The  progress  of  de- 
mocracy has  not,  of  course,  been  continuous  and  un- 
broken. We  have  but  to  compare  the  republic  of 
Athens  with  the  principahties  of  the  dark  ages,  or  with 
France  of  the  eighteenth  century,  to  see  that  the  de- 
velopment of  seK-government  has  not  moved  in  a  con- 
tinuous advance.  But  it  is  hardly  to  be  denied  that 
the  principle  of  democratic  rule  has  now  become  a 
permanent  and  essential  factor  in  pohtical  institutions 
and  that  it  alone  can  form  the  basis  of  the  state  of  the 
future. 


48  THE  NATURE  OF  THE  STATE 

READINGS  SUGGESTED 

Aristotle's  Politics  (Jowett's  translation,  1885),  bk.  i. 
Burke,  Edmund,  Reflections  on  the  Revolution  in  France  (1790), 

(selected  passages). 
Barker,  E.,  Greek  Political  Theory  (1918),  chap.  i. 

FURTHER  AUTHORITIES 

Freeman,  E.  A.,  Comparative  Politics  (1873). 
McLennan,  J.  F.,  The  Patriarchal  Theory  (1885). 
Morgan,  L.  H.,  Ancient  Society  (1877). 
"Westermarck,  E.,  History  of  Human  Marriage  (1891). 
Tarde,  G.,  Les  Transformations  du  Droit  (13th  edition),  (1900)» 
Fowler,  W.,  The  City-State  (1893). 

Waioughby,  W-  W.,  The  PolUical  Theories  of  the  Ancient  World 
(1903). 


CHAPTER  IV 
THE  SOVEREIGNTY  OF  THE  STATE 

1.  Analysis  of  the  conception  of  sovereignty;  meaning  of  law  and 
right  —  2.  The  location  of  sovereignty  in  existing  governments — 
3.  Criticism  of  the  doctrine  of  sovereignty;  Sir  Henry  Maine's  ob- 
jections —  4.  Theory  of  political  sovereignty  —  5.  Criticism  —  6. 
Dual  or  divided  sovereignty  —  7.  Recent  criticism  of  the  doctrine 
of  sovereignty. 

I.  Analysis  of  the  conception  of  sovereignty;  mean- 
ing of  law  and  right.  Having  considered  in  the  preced- 
ing chapters  the  general  idea  of  the  state  as  anorgaiiized 
community  occupying  a  definite  territory,  it  is  next 
necessary  to  make  a  further  analysis  of  the  organization 
itself.  This  will  involve  the  discussion  of  the  relations 
existing  between  the  individual  citizen  and  the  state  as 
a  whole.  The  two  central  points  around  which  the  dis- 
cussion of  the  present  and  the  succeeding  chapter  will 
turn,  are  those  of  the  sovereignty  of  the  state,  and  the 
liberty  of  the  individual.  These  two  ideals,  which  ap- 
pear at  first  sight  to  be  naturally  contradictory,  will  be 
shown  to  be  not  only  reconcilable,  but  complementary 
and  correlative  to  one  another. 

The  question  of  the  sovereignty  of  the  state  has  long 
been  a  vexed  topic  of  political  discussion,  and  one  that 
has  given  rise  to  the  most  serious  diflSculties  and  mis- 
understandings. The  proposition  that  the  state  is  ab- 
solutely sovereign  over  the  individual  has  proved  itself  a 
stumbling-block  and  a  rock  of  offense  to  the  student  of  po- 
htical  theory.  Take,  for  example,  the  enunciation  of  the 
principle  of  sovereignty  given  by  Professor  Burgess. 
"  I  understand  by  it,"  he  says,  "  the  original,  absolute, 


50      THE  NATURE  OF  THE  STATE 

unlimited,  universal  power  over  the  individual  subject 
and  all  associations  of  subjects."  This  is  a  hard  saying 
and  one  calculated  to  call  forth  at  first  sight  a  most 
emphatic  contradiction.  It  seems  to  sanction  the  tyr- 
anny of  the  state,  and  to  involve  the  sacrifice  of  indi- 
vidual rights.  A  nearer  analysis  of  the  proper  meaning 
to  be  attached  to  the  sovereignty  of  the  state  ought  to 
rob  it  of  all  offensive  connotations.  What  is  meant  is 
simply  this.  The  state  is  an  organized  community.  It 
comes  into  existence  when  the  relations  of  control  over 
and  obedience  from  the  individual  person  are  estab- 
lished. This  obedience  may  or  may  not  receive  the 
approval  of  the  individual  rendering  it.  The  fact  of 
obedience  is  all  that  is  needed  in  order  that  the  state 
may  be  said  to  exist.  Somewhere  within  the  state  there 
wiU  exist  a  certain  person  or  body  of  persons  whose 
commands  receive  obedience.  The  commands  may  be 
just  or  unjust,  morally  speaking,  and  the  persons  in 
power  may  be  put  in  a  position  to  issue  them,  either  by 
general  consent  or  by  the  use  of  physical  force.  But  in 
either  case  they  are  able  to  make  their  commands  good 
by  actual  coercion.  Unless  there  is  such  a  body  there  is 
no  state.  The  commands  thus  given  are  called  laws.  A 
law,  then,  is  a  command  issued  by  the  state.  Can  there, 
then,  be  any  limit,  any  legal  limit,  to  the  sovereignty 
or  legal  supremacy,  of  the  state?  Obviously  not,  for 
such  a  limit  would  imply  a  contradiction  in  terms.  A 
legal  hrait  must  mean  a  limit  imposed  by  a  law-giving 
authority.  Now  the  law-giving  authority  is  the  sover- 
eign power  of  the  state,  and  any  limits  it  might  put  on 
its  own  power  would  be  removed  as  soon  as  it  saw  fit  to 
remove  them.  The  law-giving  power  of  the  law-giving 
body  is  therefore  of  necessity  unlimited.  The  state,  in 
other  words,  is  legally  sovereign.  Looked  at  in  this  light 


THE  SOVEREIGNTY  OF  THE  STATE  51 

the  matter  simply  resolves  itself  into  an  equation  in 
terms. 

An  examination  of  the  fimdamental  definition  of  law 
and  sovereignty  laid  down  by  the  English  jurist  John 
Austin  ^  may  make  still  clearer  this  point  of  view.  "  If 
a  determinate  human  superior  not  in  the  habit  of  obe- 
dience to  a  like  superior  receive  habitual  obedience  from 
the  bulk  of  a  given  society,  that  determinate  superior 
is  sovereign  in  that  society,  and  that  society  (including 
the  superior)  is  a  society  political  and  independent." 
According  to  this,  then,  a  state  (or  "  society  political 
and  independent,"  as  Austin  calls  it)  is  a  community  in 
which  such  obedience  is  given  and  received.  The  fact 
of  rule  and  obedience  is  the  test  of  the  existence  of  a 
state.  A  law  is  a  command  calling  for  such  obedience. 
We  must  carefully  note,  too,  the  conception  of  a  right, 
a  legal  right,  which  will  follow  from  these  premises.  It 
will  mean  any  privilege  or  immunity  enjoyed  by  a 
citizen  as  against  any  of  his  fellow-citizens,  granted  by 
the  sovereign  power  of  the  state  and  upheld  by  that 
power.  This,  it  will  be  seen,  is  altogether  different  from 
a  right  in  the  ethical  or  moral  sense.  Before  the  French 
Revolution,  for  example,  under  the  state  existing  in  the 
eighteenth  century,  the  feudal  lord  had  a  "  right "  to 
collect  most  oppressive  dues  from  his  inferior.  Simi- 
larly a  despot  might  grant  to  one  of  his  underlings  the 
"  right "  of  life  and  death  over  the  people  of  a  subju- 
gated province.  It  will  follow  that  in  the  oi^anization 
of  the  state  the  individual  can  have  no  "  rights " 
against  the  state  itself.  For  this,  since  it  is  the  state 
which  creates  a  legal  right,  would  involve  a  contradic- 

*  John  Austin  (1790-1869),  the  chief  English  writer  on  jurispru- 
dence of  the  nineteenth  century,  is  to  be  regarded  as  the  founder  of  the 
analytical  school,  whose  views  have  exercised  a  paramount  influence 
on  legal  thought  in  England  and  America. 


«2  THE  NATURE  OF  THE  STATE 

tion  in  terms.  It  is  to  be  observed  that  as  thus  under- 
stood, the  conception  of  sovereignty,  law,  and  right  is 
altogether  divorced  from  morality  and  ethics. 

The  misunderstanding  of  this  restricted  sense  in 
which  the  state  is  sovereign  and  law  is  unlimited  in  its 
power  leads  to  an  altogether  fallacious  form  of  objec- 
tion. Surely,  it  is  urged,  the  state  has  no  right  to  inter- 
fere with  such  things  as  the  religion  and  private  life 
of  the  individual?  Surely  there  are  limits  to  the  prov- 
ince in  which  the  conmiands  of  the  state  may  intrude? 

There  are  assuredly  such  limits  in  the  moral  sense; 
certainly  most  persons  would  think  it  morally  wrong 
for  the  state  to  dictate  as  to  the  religious  creed  of  the 
individual.  But  this  does  not  imply  any  legal  limit  to 
the  jurisdiction  of  the  state.  The  sovereign  body  of  the 
state  can  be  under  no  legal  restriction  as  to  its  inter- 
ference in  rehgion  or  any  private  matter.  If  it  were 
under  such  a  limitation  then  it  would  not  be  a  sovereign 
body;  the  sovereignty  would  lie  in  that  person  or  per- 
sons in  whose  power  it  lay  to  assign  and  mark  off  those 
limits.  The  same  answer  is  to  be  made  to  the  various 
other  attempts  to  put  a  "limit"  on  the  extent  of  sover- 
eign power.  Bluntschli,  for  instance,  tells  us  that  "  the 
state  as  a  whole  is  not  almighty,  for  it  is  limited  ex- 
ternally by  the  rights  of  other  states,  and  internally  by 
its  own  nature  and  by  the  rights  of  its  individual  mem- 
bers." ^  Bentham  claimed  that  the  sovereignty  of  the 
state  was  limited  by  its  treaties  with  other  states.  But 
each  of  these  "  limits  "  is  of  an  ethical,  not  a  legal 
character.  Legally  speaking  the  state  is  almighty. 

The  misunderstanding  so  easily  engendered  here  is 
heightened  by  the  ambiguity  of  part  of  the  terminol- 
ogy employed  in  this  connection.   The  word  "  right  " 

*  Theory  of  the  State,  bk.  vu,  chap.  i. 


THE  SOVEREIGNTY  OF  THE  STATE  53 

has  both  its  moral  and  its  legal  sense.  In  the  former 
application  it  extends  over  the  whole  field  of  conduct, 
and  refers  to  all  those  actions  and  forbearances  which 
it  is  our  moral  duty  to  perform;  in  the  legal  sense  it 
refers  only  to  those  actions  or  forbearances  the  per- 
formance of  which  is  rendered  compulsory  by  the  co- 
ercive power  of  the  state.  Similarly  the  word  "  sover- 
eignty "  is  not  only  used  in  the  sense  of  legal  suprem- 
acy, but  has  also  another  connotation.  It  is  used,  that 
is  to  say,  in  a  purely  nominal  sense,  to  indicate  the 
titular  supremacy  of  a  monarch.  Thus  there  is  a 
"  sovereign  "  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  but  this  is  only  titular  and  not  legal  sover- 
eignty. The  distinction  is  sufficiently  obvious  to  need 
no  further  explanation. 

2.  The  location  of  sovereignty  in  existing  govern- 
ments. The  nature  of  sovereignty  and  law  as  thus 
described  may  be  further  illustrated  by  examining  its 
actual  application  to  the  case  of  some  of  the  chief  states 
of  the  world.  The  example  most  easily  understood  is 
that  of  the  BHtish  Empire.  Here  the  sovereign  legal 
authority  Ues  in  the  Parliament  —  the  word  "  parlia- 
ment" having,  of  course,  its  technical  legal  meaning  of 
King,  Lords,  and  Commons.  Parliament  is  an  absolute 
legal  sovereign.  Every  law  that  it  sees  fit  to  make  is, 
ipso  facto,  a  vahd  law.  There  is  no  (legal)  restriction 
on  the  extent  of  its  jurisdiction.  No  British  court  can 
question  the  validity  of  a  statute  duly  passed  by  Par- 
hament.  It  is  (legally)  quite  unrestrained  by  custom, 
by  the  legislation  of  the  past,  or  by  any  of  the  written 
documents  (Magna  Carta,  etc.)  which  may  be  said  to 
form  part  of  the  British  Constitution.  No  individual 
citizen  has  any  (legal)  "  rights  "  which  the  sovereign 
power  of  Parliament  could  not  annul;  no  local  body  or 


U  THE  NATURE  OF  THE  STATE 

colony  nas  any  powers  of  self-government  which  an  act 
of  Parliament  could  not  abolish.* 

The  example  of  the  British  Empire  seems  to  show 
the  legal  supremacy  of  the  state  in  simple  form.  The 
case  of  the  United  States,  though  more  complex,  is 
reducible  to  the  same  elements.  Here,  at  fibrst  sight, 
the  presence  of  the  sovereign  body  is  not  so  apparent. 
The  powers  of  the  government  of  any  State  of  the 
Union  —  either  executive  or  legislative  —  are  powers 
of  Umited  legal  extent.  Similarly  the  powers  of  the 
federal  government  —  of  the  President  and  of  Congress, 
or  of  both  together  —  are  powers  of  limited  extent. 
The  Congress  is  not  legally  empowered,  as  is  the  British 
Parliament,  to  make  any  law  it  may  think  proper,  and 
the  courts  can  question  the  vaUdity  of  any  statute, 
either  state  or  federal,  which  transcends  the  legal 
powers  of  those  who  made  it.  For  example,  a  federal 
law  imposing  an  export  duty  would  not  be  legally  bind- 
ing. But  all  this  is  only  to  say  that  neither  the  Pres- 
ident nor  the  Congress  nor  the  state  government  is  the 
body  invested  with  the  sovereign  power  of  the  state. 
The  supreme  authority  Ues  elsewhere.  It  is  in  that  body 
which  has  power  (legally)  to  make  any  law  it  wishes, 
that  is  to  say  in  the  body  which  has  the  legal  right  to 
amend  the  Constitution  of  the  United  States.  It  is  true 
that  this  body,  consisting  of  a  two-thirds  majority  of 
Congress,  or  a  special  convention,  with  the  ratification 
of  three  fourths  of  the  state  legislatures  or  special  con- 
ventions, ^  is  not  in  permanent  session  as  a  united  gov- 

*  It  is  obvious  that  as  a  matter  of  fact  the  powers  which  the  Brit- 
ish Parliament  can  exercise,  or  would  try  to  exercise,  over  the  self- 
governing  Dominions  are  of  a  very  limited  character.  But  the  legal 
supremacy  of  the  British  Parliament,  for  whatever  that  is  worth,' re- 
mains still  (1920)  unimpaired. 

*  "The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it 
Biecessary,  shall  propose  amendments  to  this  Constitution,  or  on  the 


THE  SOVEREIGNTY  OP  THE  STATE  55 

eming  body.  But  it  is  clear  that  theoretically  at  any 
rate  it  exists,  and  may  be  looked  upon  as  having  a  legal 
supremacy  as  complete  as  that  of  the  British  Parlia- 
ment. In  like  manner  in  the  case  of  France,  neither  the 
President  nor  the  Chamber  of  Deputies  nor  the  Senate 
has  unlimited  legal  competence.  The  powers  of  all  of 
them  are  restricted  by  the  "constitutional  laws"  of  the 
French  Republic.  But  the  Senate  and  the  Deputies 
may  be  fused  together  into  a  joint  session  or  national 
assembly,  in  which  capacity  they  may  amend  the  con- 
stitution and  are  legally  supreme. 

3.  Criticism  of  the  doctrine  of  sovereignty;  Sir  Henry 
Maine's  objections.  Such  is  in  the  main  the  conception 
of  sovereignty  and  law  which  is  particularly  associated 
with  the  modem  English  school  of  jurists,  the  analytical 
school,  as  it  is  often  called.  It  may  be  considered  on  the 
whole  the  most  satisfactory  basis  for  an  analysis  of  the 
political  state.  It  has,  however,  met  with  severe  and 
searching  criticism,  and  has  by  no  means  received  a 
universal  acceptance.  It  is  only  reasonable,  therefore, 
to  present  in  connection  jvith  it  some  of  the  chief  points 
of  attack.  The  objections  raised  against  it  are  directed 
to  show  that  it  is  only  of  a  formal  and  abstract  nature, 
that  it  is  inadequate  in  that  it  does  not  really  indicate 
the  ultimate  source  of  political  authority,  and  that  it 
presents  an  erroneous  conception  of  the  nature  of  law. 

The  first  of  these  objections  to  the  Austinian  theory 
is  especially  urged  in  the  criticism  offered  by  the  Eng- 
lish jurist  Sir  Henry  Maine  in  his  Oxford  lectures  on  the 

application  of  the  Legislatures  of  two  thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  amendments  which  in  either  case  shall 
be  valid  to  all  intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three  fourths  of  the  several  States, 
or  by  conventions  in  three  fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  Congress."  (Constitution  oj 
the  United  States,  art.  v.) 


66      THE  NATURE  OF  THE  STATE 

Early  Hiaiory  of  InstiiiUions.^  From  his  seven  years* 
experience  in  India  as  legal  member  of  the  council, 
Maine  was  brought  in  contact  with  a  civilization  of 
an  essentially  different  character  from  the  environment 
of  English  legal  institutions  which  had  been  the  basis 
of  Austin's  work.  In  Eastern  countries  immemorial 
custom  reigns  supreme.  The  idea  of  deUberate  statu- 
tory enactment  is  alien  to  the  Oriental  mind,  and  the 
most  ruthless  of  Eastern  despots  finds  his  power  con- 
trolled by  the  barriers  of  ancient  usage  and  religious 
awe.  Maine  was,  therefore,  led  to  questioii  whether 
there  is  "  in  every  independent  political  community 
some  single  person  or  combination  of  persons  which 
has  the  power  of  compelling  the  other  members  of  the 
community  to  do  exactly  as  it  pleases."  The  presump- 
tion that  every  community,  except  during  temporary 
intervals  of  disturbance,  contains  this  individual  or 
collegiate  sovereign  "  as  certainly  as  the  center  of 
gravity  in  a  mass  of  matter,"  seemed  to  him  unwar- 
ranted by  historical  or  actual  fact.  Particularly  is  this 
the  case  with  communities  of  the  Oriental  type.  Maine 
instances  the  example  of  Runjeet  Singh,  the  despot  of 
the  Punjaub,  "  the  smallest  disobedience  to  whose 
commands  would  have  been  followed  by  death  or  mu- 
tilation." In  spite  of  this  ruler's  extensive  power  he 
never  "  issued  a  conmaand  which  Austin  would  call  a 
law. . . .  The  rules  which  regulated  the  lives  of  his 
subjects  were  derived  from  their  immemorial  usages, 
and  these  rules  were  administered  by  domestic  tribu- 
nals." The  inevitable  conclusion  seems  to  be  that  the 
conceptions  of  sovereignty,  state,  and  law  adopted  in 
the  Austinian  jurisprudence  are  inapplicable  to  com- 
munities of  this  description.    But  it  is  not  only  in 

>  See  Early  Bittory  of  Itutitutioru,  lectures  xu  and  xui. 


THE  SOVEREIGNTY  OF  THE  STATE  67 

regard  to  Oriental  society  that  Maine  finds  Austin's 
analysis  inadequate.  Even  in  the  world  of  Western 
civilization  it  is  only  true  as  the  result  of  a  process  of 
abstraction  which  "throws  aside  all  the  characteristics 
and  attributes  of  government  and  society  except  one," 
namely,  the  possession  of  force;  this  explanation  of 
political  power  by  reference  solely  to  a  single  attribute 
disregards  at  the  same  time  "  the  entire  history  of  the 
community,  .  . .  the  mass  of  its  historic  antecedents, 
which  in  each  community  determines  how  the  sover- 
eign shall  exercise,  or  forbear  from  exercising,  his  irre- 
sistible coercive  power." 

The  natiu-e  of  this  objection  had,  indeed,  been  in  some 
measure  anticipated  by  Austin  himself.  In  order  to 
cover  all  those  cases  of  usage  in  which  not  the  direct 
command  of  the  sovereign,  but  dictates  of  customary 
procedure  obtained  sway,  he  laid  down  the  maxim, 
"  What  the  sovereign  permits  he  commands."  The  ap- 
plication of  this  doctrine  may  be  best  seen  in  the  case  of 
the  EngUsh  common  (or  customary)  law.  This  is  a  body 
of  regulations  never  expressed  in  the  form  of  statutes 
issued  by  the  sovereign  Parliament,  but  existing  from 
ancient  times,  and  constantly  modified  and  expanded 
by  the  interpretation  of  the  courts.  It  would  be  quite 
wrong,  Austin  argues,  to  hold  that  the  existence  and 
continuance  of  this  body  of  law  is  any  indication  of  a 
limitation  of  the  sovereign  power  of  Parliament.  For 
since  the  latter  is  admittedly  competent  to  alter  or  abro- 
gate the  common  law  as  it  sees  fit,  the  continued  exist- 
ence thereof  is  to  be  viewed  as  virtually  by  command 
of  Parliament  This  argument  is  undoubtedly  true  in 
reference  to  the  legal  validity  of  the  common  law.  The 
attempt,  however,  to  apply  it  to  such  cases  as  that  of 
the  Punjaub  despot  seems  entirely  erroneous.  For  in 


58      THE  NATURE  OF  THE  STATE 

this  instance  the  sovereign  has  no  alternative  but  to 
"permit"  what  he  cannot  alter.  Only  an  exaggeration 
of  terms  could  convert  this  into  sovereignty.  On  the 
same  groimd  any  one  might  "  permit "  the  law  of 
gravitation  to  continue  in  force. 

It  may  perhaps  reasonably  be  held  that  Austin's 
analysis  is  apphcable  to  modem  civihzed  states,  but 
inapplicable  to  half-organized  or  primitive  communities. 
Even  in  the  case  of  civilized  states,  it  is  true  that  the 
theory  is  in  a  certain  sense  an  abstraction.  "  It  is  true," 
says  Sir  James  Stephen,^  in  speaking  of  the  theory  of 
sovereignty,  "  hke  the  propositions  of  mathematics  or 
poUtical  economy,  in  the  abstract  only.  That  is  to  say, 
the  propositions  which  it  states  are  propositions  which 
are  suggested  to  the  imagination  by  facts,  though  no 
facts  completely  embody  and  exemplify  them.  As  there 
is  in  nature  no  such  thing  as  a  perfect  circle,  or  a  com- 
pletely rigid  body,  or  a  mechanical  system  in  which 
there  is  no  friction,  or  a  state  of  society  in  which  men 
act  simply  with  a  view  to  gain,  so  there  is  in  nature  no 
such  thing  as  an  absolute  sovereign."  With  these  lim- 
itations the  Austinian  theory  may  be  looked  upon  as 
substantially  correct.  Its  apphcation  is  to  be  viewed 
as  limited  to  communities  definitely  organized.  The 
analysis  of  political  power  which  it  offers  is  not  meant 
as  an  explanation  of  the  ultimate  source,  the  first  cause, 
of  authority,^  but  merely  intended  as  a  universal  ab- 

>  Hora  Sabbaticte,  second  series,  chap.  i.  The  author  is  speaking  of 
the  theory  as  laid  down  by  Hobbes,  but  the  remarks  apply  equaUy  well 
to  the  more  modem  form  of  the  doctrine. 

«  "The  question  who  is  the  legal  sovereign,"  says  Lord  Bryce, 
"stands  quite  apart  from  the  questions  why  is  he  sovereign,  and  who 
made  him  sovereign.  The  historical  facts  which  have  vested  power  in 
any  given  sovereign,  as  well  as  the  moral  grounds  on  which  he  is  en- 
titled to  obedience,  lie  outside  the  questions  with  which  law  is  con- 
cerned, and  belong  to  history,  to  political  philosophy,  or  to  ethics;  and 
nothing  but  confusion  is  caused  by  obtruding  them  into  the  purely 


THE  SOVEREIGNTY  OF  THE  STATE  59 

stract  formula,  indicating  the  metiiod  of  its  operation  in 
the  modem  world.  To  accept  the  doctrine  in  this  sense 
is  of  course  necessarily  to  restrict  the  connotation  of 
the  terms  state  and  law.  The  term  state  will  include 
only  conmiimities  possessing  the  requisite  finality  of 
organization,  and  fixed  relations  of  conmiand  and 
obedience.  A  law  will  connote  only  a  command  issued, 
either  directly  or  indirectly  (through  deliberate  refusal 
to  contravene  an  established  usage),  by  the  sovereign 
organization  of  the  state.  What  is  thus  lost  in  width 
of  connotation  will  be  gained  in  precision  and  signifi- 
cance. 

Many  authors  prefer,  however,  to  widen  the  terms 
state  and  law,  in  order  to  meet  Maine's  criticism,  and 
to  include  the  Oriental  or  other  communities  whose 
poUtical  cohesion  does  not  correspond  to  the  Austinian 
analysis.  Woodrow  Wilson,^  for  instance,  presents  a 
conception  of  law  which  does  not  identify  it  with  a 
definite  command,  but  endeavors  to  include  in  it  those 
customary  usages  which  have  become  of  binding  force. 
"  Law,"  he  says,  "  is  that  portion  of  the  established 
thought  and  habit  which  has  gained  distinct  and  formal 
recognition  in  the  shape  of  uniform  rules  backed  by 
the  authority  and  power  of  government."  Of  these 
rules  dehberate  enactment  is  only  one  of  the  contribu- 
tory sources.  They  arise  in  part  from  long  standing 
custom  "shaped  by  the  cooperative  action  of  the  whole 
community,  and  not  by  any  kingly  or  legislative  com- 
mand." Among  the  other  sources  of  law  are  the  rules 
of  conduct  dictated  by  rehgious  behef ,  and  the  decisions 
of  those  who  adjudicate  upon  the  law  already  existing 

legal  questioDS  of  the  determination  of  the  sovereien  and  the  defini- 
tion of  his  powers."  (Sliidiea  in  Hutory  and  Jiurisprudence.)  (1901.) 
>  The  Slate,  chap.  xiv. 


60      THE  NATURE  OF  THE  STATE 

and  thus  expand  its  meaning.  The  view  here  adopted 
by  Woodrow  Wilson  is  intended  to  harmonize  the  ana- 
lytical account  of  law  with  the  criticism  offered  by 
Sir  Henry  Maine.  But  it  is  perhaps  open  to  question 
whether  in  the  case  of  civflized  states  the  maxim  "  what 
the  sovereign  permits  he  commands"  will  not  bring  the 
sources  of  law  above  mentioned  within  the  sphere  of 
the  Austinian  formula. 

4.  Theory  of  political  sovereignty.  In  addition  to  the 
criticism  of  the  Austinian  theory  of  sovereignty  thus 
indicated,  exception  has  been  taken  to  it  upon  a  some- 
what different  ground.  The  conception  of  legal  au- 
thority, it  is  argued,  though  undeniable  as  far  as  it 
goes,  does  not  go  far  enough;  while  indicating  the  person 
or  body  of  persons  legally  competent  to  issue  sovereign 
commands  to  the  rest'  of  the  community,  it  does  not 
really  trace  out  the  ultimate  repository  of  political 
power.  In  a  despotic  monarchy,  the  will  of  the  monarch 
may  be  the  sole  lawful  authority,  but  the  monarch 
himself  may  be  merely  the  pliant  tool  of  a  cimning 
priest  or  dominating  vizier.  In  countries  with  repre- 
sentative government,  the  elected  governing  body  may 
have,  or  seem  to  have,  a  temporary  legal  control,  but 
what  are  we  to  say  of  the  general  body  of  electors, 
whose  will  they  represent,  and  from  whom  they  derive 
their  authority?  Is  it  an  adequate  explanation  of  politi- 
cal cohesion  and  obedience  to  stop  short  of  the  legal 
supremacy  of  a  king  or  legislature,  whose  power  may 
be  nominal,  illusory,  or  delegated,  and  to  refuse  to 
recognize  the  real  and  paramount  source  of  authority 
which  lies  behind  it? 

On  these  grounds  several  writers  have  recently  sought 
to  amend  the  Austinian  theory  by  appending  to  the  con- 
ception of  pure  legal  sovereignty  that  of  real,  or  "politi- 


THE  SOVEREIGNTY  OF  THE  STATE  61 

iml  sovereignty."  ^  Their  intention  is  not  to  set  aside 
«he  result  of  Austin's  analysis,  but  merely  to  draw  at- 
tention to  the  fact  that  it  does  not  seem  to  offer  a  com- 
plete explanation  of  the  nature  and  location  of  supreme 
political  power.  "Behind  the  sovereign  which  the  law- 
yer recognizes,  there  is,"  says  Professor  Dicey,  "an- 
other sovereign  to  whom  the  legal  sovereign  must  bow." 
Professor  Sidgwick  illustrates  the  point  involved  by 
constructing  hypothetical  cases  in  which  the  ultimate 
political  power  is  clearly  not  in  the  hands  of  the  legal 
sovereign.  "An  irresponsible  dictator  appointed  by  a 
popular  assembly  for  a  term  of  years  and  not  desiring 
reappointment"  might  be  said  to  be  legally  and  actually 
sovereign.  But  should  he  be  anxious  for  reappointment, 
then  the  assembly  to  whose  wishes  he  must  bow  be- 
comes the  paramount  political  influence,  and  his  legal 
sovereignty  is  no  longer  the  final  seat  of  actual  power. 
Or  let  us  "suppose  that  a  monarch  habitually  obeys  a 
priest,  not  from  fear  of  the  extra-mundane  penalties 
threatened  by  the  latter,  but  from  fear  of  finding  it 
difficult  to  obtain  obedience  from  his  subjects  if  they 
believe  him  to  be  a  special  object  of  God's  anger  —  we 
shall  agree  that  he  no  longer  possesses  completely  sover- 
eign power."  Following  upon  this  line  of  argument  we 
might  well  expect  to  find  that  the  legal  and  the  political 
sovereigns  would  but  rarely  coincide.  In  one  state  the 
priesthood,  in  another  the  military  or  landed  classes, 
in  another  the  personal  entourage  of  the  king  or  the 
predominant  influence  of  a  metropohs,  might  supply 

»  For  the  theory  of  political  sovereignty  the  student  may  consult 
A.  V.  Dicey,  Law  of  the  Constitution;  David  G.  Ritchie,  Principles  of 
State  Interference;  Sidgwick,  Elements  of  Politics,  chap,  xxxi,  and 
M'Kechnie,  The  State  and  the  Individual,  chaps,  ix,  x.  All  of  these  au- 
thorities consider  the  distinction  between  legal  and  political  sever* 
eignty  both  tenable  and  valuable. 


62      THE  NATURE  OF  THE  STATE 

the  real  motive  power  that  controls  the  public  adminia- 
tration. 

Here  it  might  well  be  suggested  that  the  sovereign 
political  power  would  in  many  cases  lie  with  the  general 
mass  of  the  people,  or  at  any  rate  with  the  general  mass 
of  voters,  who  may  constitute  in  democratic  countries 
practically  the  entire  adult  population.  Austin  him- 
self, in  this  particular,  fell  into  an  amazing  error  in 
that  he  attempted  to  attribute  not  the  political  but  the 
legal  sovereignty  itself  to  the  body  of  the  electorate. 
The  fallacy  *  is  here  obvious.  For  although  the  voters 
are  empowered  by  law  to  elect  members  of  the  legisla- 
ture at  stated  intervals,  they  have  (legally)  no  power 
of  political  action  beyond  this.  Under  most  govern- 
ments they  cannot  pass  a  law  or  negative  measures 
of  the  legislature.  In  Great  Britain,  for  instance,  the 
Pariiament  (legally  speaking)  would  be  perfectly  com- 
petent to  pass  a  law  declaring  its  own  existence  per- 
manent and  robbing  the  voters  of  their  electoral  priv- 
ileges. Only  in  a  country  where  the  system  of  the 
initiative  and  the  referendum  ^  was  made  obligatory 
and  imiversal  could  the  electors  be  said  to  be  legally 
sovereign.  But  without  falling  into  this  confusion 
whereby  Austin  mars  the  precision  of  his  own  system, 
it  may  be  argued  with  much  plausibihty  that  the  ulti- 
mate pohtical  sovereignty  rests  with  the  electorate. 
Much,  however,  may  be  advanced  against  this  view.  Is 
it  not  quite  conceivable  that  the  voters  themselves  may 
be  under  the  dominance  of  a  priesthood,  or  practically 
under  the  dictates  of  the  land-owners  or  aristocracy  or 
some  particular  class?  In  such  cases  the  political  sov- 

*  Professor  Sidgwick,  in  an  appendix  to  his  Elements  of  Politics, 
demonstrates  the  absurdity  of  Austin's  position. 

*  See  part  ii,  chap,  iv,  below,  "The  Judiciary  and  the  Electorate." 


THE  SOVEREIGNTY  OF  THE  STATE  63 

ereignty  would  have  to  be  traced  a  step  beyond  the 
electorate.  Is  it  not,  moreover,  to  be  supposed  that  in 
cases  where  the  electorate  is  restricted,  as  for  instance 
by  the  exclusion  of  women,  the  voters  may  be  influenced 
by  the  non-voting  class?  It  does  not  seem  to  follow  that 
the  voters  of  a  democratic  country  always  and  of  neces- 
sity represent  the  final  and  ultimate  source  of  authority. 

5.  Criticism.  Indeed,  the  more  one  searches  for  this 
final  authority  the  more  it  seems  to  elude  one's  grasp. 
At  its  first  statement  the  idea  of  a  poUtical  sovereignty 
appears  eminently  reasonable.  On  closer  examination 
it  becomes  a  sort  of  political  "first  cause,"  and  is  as 
unfindable  in  the  domain  of  poUtics  as  in  that  of  phys- 
ics. The  moment  one  passes  from  the  dry  certainty 
of  the  Austinian  conception  of  legality,  all  is  confusion. 
The  particular  set  of  persons  in  a  modern  state  who 
are  invested  with  unlimited  law-making  power  are  a 
definite  and  findable  body.  The  particular  person,  or 
set  of  persons,  whose  will  is  in  reaUty  supreme,  fades 
upon  analysis  into  a  vague  complexity. 

Professor  Ritchie  and  others  have  sought  to  avoid 
this  difiiculty,  by  laying  down  the  theory  that  the  ulti- 
mate repository  of  poHtical  power  is  always  found  in 
the  mass  of  the  people.  By  whatever  routes  it  is  traced, 
whether  directly  through  electoral  power,  or  indirectly 
through  influence,  intimidation,  or  potential  rebellion, 
the  final  source  of  authority  is  here  to  be  discovered. 
"The  people"  possess  the  physical  power.  In  the  last 
resort  —  the  appeal  to  force  —  they  are  bound  to  pre- 
vail. Any  form  of  rule  to  which  they  submit  exists, 
therefore,  only  by  virtue  of  their  tacit  consent.  We 
have  thus  a  theory  of  popular  sovereignty  carried  to  an 
extreme  point.  Such  a  theory  does  not  content  itself 
with  sayiQg  that  the  people,  the  majority  of  the  people. 


04      THE  NATURE  OF  THE  STATE 

(mgM  to  possess  the  supreme  power,  but  that  in  all  cases 
they  actually  do  possess  it.  Having  the  physical  supe- 
riority which  would  enable  them,  if  sufficiently  pro- 
voked, to  annihilate  the  existing  government,  there  must 
always  be  limits  to  the  extent  of  coercion  that  they 
will  suffer.  Obedient  as  they  may  be  within  these 
limits,  they  are  in  the  last  resort  the  masters.  The  con- 
sent by  which  they  permit  the  existence  of  the  govern- 
ment, is  a  tacit,  and  perhaps  unconscious,  acquiescence 
rather  than  the  explicit  formula  of  contract  that  was 
present  to  the  minds  of  Rousseau's  citizens;  none  the 
less  it  is  true  that  they  do  give  this  consent,  and  that 
it  is  the  real  universal  basis  of  political  sovereignty. 
"The  Czar  of  all  the  Russias,"  said  Mr.  Ritchie,  "rules 
by  the  will  of  his  people,  as  much  as  does  the  executive 
of  the  Swiss  Federation."  ^ 

Attractive  as  is  such  a  theory  of  popular  sovereignty, 
it  rests  upon  grounds  essentially  fallacious.  It  assumes 
that  the  superiority  in  actual  physical  force  must  of 
necessity  rest  with  the  mass  —  the  majority  —  of  the 
people.  To  suppose  this  is  to  leave  altogether  out  of 
sight  the  question  of  military  equipment,  organization, 
and  mutual  understanding.  A  nation  of  a  million  un- 
armed men  could  easily  be  overawed  by  a  force  of  a 

*  Professor  Ritchie  includes  in  the  sources  of  political  power  all 
those  influences,  historic  and  actual,  which  contribute  to  the  present 
disposition  and  opinion  of  the  governed.  "  The  ultimate  political  sover- 
eignty is  not  the  determinate  number  of  persons  now  existing  in  the 
nation,  but  the  opinions  and  feelings  of  these  persons;  and  of  these 
opinions  and  feelings  the  traditions  of  the  past,  the  needs  of  the  pres- 
ent, and  the  hopes  of  the  future  all  form  a  part."  In  the  case  of  the 
Russian  people,  Mr.  Ritchie  argues  that  "the  belief  in  the  Czar's  di- 
vine right  is  the  source  of  his  power,  and  the  ground  of  his  obedience." 
A  similar  point  of  view  appears  in  M'Kechnie's  TAc  State  and  the  In- 
dividual:  "The  effective  force  of  a  nation  remains  with  the  whole  body 
of  its  members,  whatever  forms  of  expression  or  outlet  it  may  find,  nnd 
whatever  agents  may  be  legally  empowered  to  act  or  think  for  it.  The 
real  or  '  political'  sovereign  liee  in  the  will  of  the  people." 


THE  SOVEREIGNTY  OF  THE  STATE  65 

hundred  thousand  soldiers  equipped  with  modem  weap- 
ons, and  acting  as  a  disciplined  unit.  Because  a  hun- 
dred convicts  "acquiesce"  in  the  control  exercised  by 
a  dozen  armed  sentinels,  it  cannot  be  argued  that  the 
power  of  the  sentinels  rests  either  inmiediately  or  ulti- 
mately upon  the  consent  of  these  convicts.  Whatever 
was  the  true  interpretation  of  the  political  cohesion  of 
Russia  before  the  war,  it  is  at  least  conceivable  that  the 
support  extended  to  the  autocracy  by  the  army  in  its 
pay  may  have  had  as  much  to  do  with  its  maintenance 
as  the  good-will  of  the  people  at  large.  It  seems  evident 
upon  examination  that  the  niunerical  majority  is  not  of 
necessity  always  the  stronger  power.  It  becomes  so  only 
in  proportion  as  it  enjoys  the  advantages  of  organiza- 
tion, equipment,  and  ability  to  act  on  a  preconcerted 
plan.  Hence  in  order  to  make  the  theory  of  political 
sovereignty  stand  upright  it  is  necessary  again  to  shift 
the  ground  and  to  claim  that  the  ultimate  sovereignty 
lies  not  with  the  mass  of  the  people,  nor  with  the  nu- 
merical majority,  but  with  the  strongest  group  of  per- 
sons trained  to  act  together.  But  since  a  group  is  usually 
trained  only  to  act  together  in  a  prescribed  way,  and 
at  the  dictates  of  a  particular  person  or  set  of  persons, 
it  is  clear  that  it  is  not  the  collective  will  of  this  armed 
force  itself  which  exercises  the  supreme  control,  but 
that  of  the  person  or  persons  whom  they  are  individu- 
ally trained  to  obey.  Thus  the  search  for  ultimate  sov- 
ereignty relapses  into  the  same  vagueness  as  before. 

6,  Dual  or  divided  sovereignty.  The  peculiar  situ- 
ation of  the  United  States  in  reference  to  the  exercise 
of  supreme  and  unlimited  power  has  given  rise  to  another 
attempt  to  alter  this  universal  formula  of  a  single  sov- 
ereign body.  In  this  instance,  as  already  said,  neither 
the  federal  government  nor  the  government  of  an  in- 


(»  THE  NATURE  OF  THE  STATE 

dividual  State  has  unlimited  power.  The  precise  nature 
of  the  constitutional  power  of  the  two  was  long  a  subject 
of  intense  controversy.  In  this  controversy  there  was 
developed  the  theory  of  a  divided  or  dual  sovereignty. 
According  to  this  doctrine  the  totaHty  of  sovereign 
power  was  divided  between  the  state  and  federal  gov- 
ernments, each  of  which  was  sovereign  in  its  own 
province,  but  was  legally  limited  outside  of  its  own 
province  by  the  sovereignty  of  the  other.  Such  a  view 
of  sovereignty  is  utterly  inconsistent  with  the  concep- 
tion of  sovereign  power  discussed  above.  The  proper 
application  of  the  analytical  view  of  sovereignty  to  a 
federal  government  will  be  discussed  in  dealing  with 
the  general  subject  of  federal  organization. 

7.  Recent  criticism  of  the  doctrine  of  sovereignty.  Of 
late  years  the  doctrine  of  sovereignty  has  been  subject 
to  further  criticism  from  a  somewhat  different  point  of 
view.  It  is  argued  that  the  organization  which  we  call 
the  state  is  only  one  of  the  controlling  forces  represented 
in  the  cohesion  of  society.  Such  powerful  organizations 
as  the  churches,  the  labor  xmions,  and  a  variety  of  other 
groupings  and  aflSnities  possess  in  real  fact,  it  is  said, 
BO  great  an  authority  over  individual  life  and  conduct, 
that  any  theory  of  social  control  which  ignores  them 
is  barren  and  meaningless.  "One  begins  by  thinking 
Austin  self-evident,"  says  Dr.  J.  N.  Figgis;  "one  learns 
that  many  qualifications  have  to  be  made,  and  finally 
one  ends  by  treating  his  whole  method  as  abstract  and 
theoretic."  *  It  becomes  necessary,  therefore,  from  this 
point  of  view,  to  study  not  merely  the  m^hanical  oper- 
ation of  command  and  obedience  in  which  Austin  seeks 
to  depict  the  entirety  of  the  state,  but  group  forms 
which  give  reality  to  society  itself.  The  point  of  view 

*  J.  N.  Figs^,  Churehet  in  the  Modem  State.    (2d  edition,  1914.) 


THE  SOVEREIGNTY  OF  THE  STATE  67 

in  question  received  a  great  stimulus  from  studies  such 
as  those  of  the  German  jurist,  Otto  Gierke,  and  the 
work  done  in  England  by  Professor  F.  W.  Maitland 
under  the  influence  of  German  thought.^  In  our  own 
time  the  idea  that  the  Austinian  state  is  not  everything 
is  enhanced  by  the  increasing  scope  and  power  of  labor 
unions,  and,  still  more,  the  increasing  application 
toward  social  control  of  forces  that  act  not  through  the 
state,  but  in  defiance  of  it.  Such  things  as  "direct 
action,"  "general  strikes,"  and  plebiscitary  votes  of 
vast  numbers  of  workers,  or  a  direct  mandate  from  the 
Pope  in  regard  to  Bolshevism,  illustrate  what  is  meant. 
In  proportion,  then,  as  groups  and  associations,  his- 
torical and  actual,  are  elevated  in  importance,  the  state 
and  the  law  are  minimized.  "The  mere  emphasis  laid 
on  groups,"  writes  Mr.  Ernest  Barker,  "in  itseK  affects 
our  theory  of  the  state.  We  see  the  state  less  as  an  asso- 
ciation of  individuals  in  a  common  life:  we  see  it  more 
as  an  association  of  individuals,  already  united  in  vari- 
ous groups  each  with  its  conmion  life,  in  a  further  and 
higher  group  for  a  further  and  more  embracing  common 
purpose."  ^  It  is,  however,  open  to  the  Austinian  theo- 
rist to  reply  that  this  line  of  criticism  serves  only  to  con- 
fuse the  issue  as  to  what  the  original  Austinian  theory 
piu-ported  to  be  and  to  do.  It  was  not  meant,  he  may 
say,  to  deal  with  all  aspects  of  organized  humanity,  but 
only  with  one.  Its  significance  lay  in  the  fact  that  it  did 
actually  separate  out  one  thread  from  the  skein  and 
follow  it  to  its  end.  Its  very  abstraction  was  its  strength. 
It  afforded  a  clear  view  of  the  nature  of  existing  legal 
rights,  without  professing  to  have  anything  to  say  about 

»  See  F.  W.  Maitland,  Political  Theories  in  the  Middle  Ages.   (1900.) 
'  Eraest  Barker,  Political  Thought  in  England  from  Herbert  Spencer 
*o  the  Present  Day.   (1915.) 


68      THE  NATURE  OF  THE  STATE 

historic  origins,  and  development,  or  the  relation  of 
legal  rights  to  public  opinion  and  general  morality.  The 
future  of  the  controversy  thus  opened  will  probably 
depend  much  upon  what  happens  to  the  coercive  powers 
of  the  state  among  the  newer  forces  of  our  present 
environment.^ 

READINGS  SUGGESTED 

Austin,  J.,  Lectures  on  Jurisprudence  (4th  edition,  1879),  vol. 
1,  lecture  vi. 

Maine,  Sir  H.,  Early  History  of  Institutions  (1875;  4th  edi- 
tion, 1885),  chaps,  xn,  xin. 

Gamer,  W.  J.,  Introduction  to  Political  Science,  chap,  vra 
(1910). 

FURTHER  AUTHORITIES 

Bryce,  James,  Studies  in  History  and  Jurisprudence,  essay  x 

(1901). 
Merriam,  C.  E.,  History  of  the  Theory  of  Sovereignty  since 

Rousseau  (1900). 
Stephen,  Sir  James,  HorcB  Sabbaiicce  (second  series),  chap,  iv 

(1892). 
M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896). 
Ritchie,  D.  G.,  Principles  of  State  Interference  (1891). 
Dicey,  A.  V.,  Law  of  the  Constitution  (1st  edition,  1885). 
Barker,  E.,  Political  Thought  in  England  from  Herbert  Spencer 

to  the  Present  Day  (1915). 
Laski,  H.  J.,  Studies  in  the  Problem  of  Sovereignty  (1917). 
Brown,  W.  Jethro,  The  Au^tinian  Theory  of  Law  (1912). 
Gray,  J.  C.,  The  Nature  and  Sources  of  the  Law  (1909). 

*  A  further  discussion  of  the  theory  of  the  state  from  the  point  of 
view  of  the  newer  criticism  may  be  found  in  H.  J.  Laski's  Stiidiea  in 
the  Problem  of  Sovereigntv.   (1917.). 


CHAPTER  V 
THE  LIBERTY  OF  THE  INDIYTOUAL 

1.  Formulation  of  the  idea  of  civil  liberty;  its  dependence  on  a  co- 
ercive sovereign  power  —  2.  Special  senses  sometimes  attached 
to  the  term  "liberty"  —  3.  Organic  theory  of  the  state  —  4.  Criti- 
cism —  5.  Elaborate  analogies  of  Spencer,  Schaffle,  etc. ;  the  per- 
sonality of  the  State  —  6.  Criticism. 

I.  Formulation  of  the  idea  of  civil  liberty;  its  depend- 
ence on  a  coercive  sovereign  power.  The  formulation 
of  the  theory  of  the  sovereignty  of  the  state  does  not 
exhaust  the  consideration  of  the  relations  existing  be- 
tween the  state  and  the  individual.  The  present  chapter 
is  to  be  devoted  to  the  further  elucidation  of  the  posi- 
tion of  the  individual  under  organized  poUtical  control, 
and  to  the  nature  and  scope  of  individual  liberty.  At 
first  sight,  the  ideas  of  state  sovereignty  and  individual 
Uberty  appear  in  sharp  contrast.  When  we  say  that  the 
state  is  legally  supreme,  that  there  is  no  limit  to  its  law- 
ful power,  and  that  the  individual  can  have  no  lawful 
rights  as  against  its  authority,  we  seem  to  have  denied 
the  existence  of  individual  Uberty.  A  closer  examination 
of  the  meaning  to  be  attached  to  the  terms  involved  will 
serve  to  dissipate  this  view.  It  will  appear  that  sover- 
eignty and  Uberty,  far  from  being  contradictory,  arf 
correlative  terms,  and  that  no  legal  conception  of  indi- 
vidual liberty  is  possible  without  the  assumption  of  a 
sovereign  power. 

Let  us  begin  by  observing  that  such  terms  as  "Ub- 
erty," "freedom,"  and  "free"  are  used  in  a  variety  of 
senses,  and  with  great  latitude  of  connotation.  "To 
Bacon  and  to  King  James,"  writes  Professor  Ritchie, 


70      THE  NATURE  OF  THE  STATE 

"a  'free'  monarchy  meant  an  absolute  monarchy,  so 
that  a  'free*  monarchy  is  incompatible  with  what  we 
call  'free'  government.  The  'liberties'  of  corporations, 
classes,  or  individuals  mean  their  special  privileges, 
and  thus  involve  considerable  interference  with  *hber- 
ties'  of  the  non-privileged.  'Freedom  of  contract'  may 
result  in  the  practical  bondage  of  one  of  the  parties  to 
the  other.  A  'free*  church  may  allow  less  'liberty'  of 
thought  than  churches  which  are  not  liberated  from 
the  state."  ^  To  the  difficulties  suggested  by  these 
special  instances  must  be  added  the  fact  that  the  term 
"hberty"  is  used  also  as  a  vague  generaUty  to  stand  for 
something  evidently  desirable,  and  yet  so  simple  in  its 
nature  as  to  need  no  further  definition.  It  is  freely 
assumed  that  every  one  ought  to  have  complete  hberty, 
and  that  every  violation  of  hberty  is  an  injustice,  with- 
out the  need  being  felt  of  any  special  inquiry  into 
the  meaning  of  hberty  itself.  To  reduce  the  term  to  a 
definite  and  exact  signification  will  serve  at  once  to 
destroy  the  mythical  and  impossible  idea  of  individual 
freedom,  in  the  hght  of  which  the  coercive  power  of 
the  state  seems  unjustifiable.  Such  an  idea  appears  in 
extreme  form  in  the  assumption,  already  referred  to, 
of  a  "natural  liberty,"  enjoyed  by  man  independently 
of,  and  antecedent  to,  the  existence  of  the  state,  and  of 
Which  the  institution  of  the  state  constitutes  an  abridg- 
ment. "What  a  man  loses  by  the  social  contract,"  said 
Rousseau,  "is  his  natural  hberty  and  an  unhmited  right 
to  anything  that  tempts  him,  which  he  can  obtain."  ^ 
Of  a  similar  character  is  the  confused  ideal  of  hberty 
which  lies  at  the  basis  of  anarchism,  or  the  negation  of 
the  right  of  coercion. 

'  Ritchie,  Natural  Rightt,  chap.  vn. 
*  Social  Contract,  bk.  i,  chap.  viu. 


THE  LIBERTY  OF  THE  INDIVIDUAL  71 

On  examination  it  will  appear  that  such  a  concep- 
tion of  liberty  is  impossible,  except  it  be  for  one  person 
omnipotent  in  power.  The  claim  that  a  person  in  the 
enjoyment  of  natural  liberty  would  have  an  unlimited 
right  to  anything  he  might  desire,  would  carry  with  it 
the  consequence  that  a  great  number  of  persons  might 
have  an  unlimited  right  to  the  same  thing.  It  is  diffi- 
cult to  attach  any  meaning  to  the  words  "liberty"  and 
"right"  that  will  make  such  a  proposition  anything 
but  absurd.  Indeed,  the  statement  is  clearly  self-con- 
tradictory and  inconsistent.  "Liberty  in  its  absolute 
sense,"  says  Lieber,^  "means  the  faculty  of  willing 
and  the  power  of  doing  what  has  been  willed,  without 
influence  from  any  other  source,  or  from  without. . . . 
In  this  absolute  meaning  there  is  but  one  free  being, 
because  there  is  but  one  being  whose  will  is  absolutely 
independent  of  any  influence  but  that  which  he  wills 
himself,  and  whose  power  is  adequate  to  his  absolute 
will  —  who  is  almighty."  It  is  clear,  then,  that  a  Ub- 
erty  of  this  absolute  and  unrestrained  character  is  an 
impossibility  for  every  individual  at  the  same  time.  It 
can  exist  neither  by  the  agency  nor  by  the  absence  of 
the  state.  The  utmost  freedom  of  action  that  each  and 
every  individual  can  enjoy  upon  like  terms  at  the  same 
time  is  to  be  completely  unrestrained  in  his  actions  in 
so  far  as  they  do  not  interfere  with  the  like  freedom 
of  his  fellows.  This  conception  of  liberty,  though  lim- 
ited, is  entirely  self-consistent.  The  liberty  of  one  is 
not  a  contravention  of  the  Hberty  of  another.  Such 
is  the  interpretaticyi  of  hberty  found  in  the  famous 
Declaration  of  the  Rights  of  Man,  adopted  in  France 

1  Franz  Lieber,  Civil  Liberty  (1852).  Lieber  (1800-72),  one  of  the 
most  distinguished  of  American  writers  on  political  science,  was  for 
some  time  a  professor  at  Columbia  CoUeKC.  Of  his  other  works,  Po- 
lilical  Ethics  (1838)  is  perhaps  the  most  important. 


fe      THE  NATURE  OF  THE  STATE 

in  1789:  "Liberty  consists  in  the  power  to  do  every- 
thing that  does  not  injure  another."  Herbert  Spencer 
expresses  the  same  idea  in  what  he  calls  the  "formula 
of  justice":  "Every  man  is  free  to  do  that  which  he 
wills,  provided  he  infringes  not  the  equal  freedom  of 
any  other  man." 

As  thus  conceived,  Hberty  is  not  inconsistent  with 
the  exercise  of  coercive  power.  On  the  contrary,  since 
the  freedom  from  interference  can  only  be  enjoyed  by 
the  forcible  prevention  of  interference,  hberty  is  seen 
to  be  dependent  upon  the  existence  of  authority.  It  is 
the  state  which  guarantees  this  immunity  to  its  citizens, 
whose  "rights"  are  thus  brought  into  legal  existence 
by  being  clothed  with  the  "sanction"  or  compelling 
force  of  the  power  of  the  state.  The  apparent  paradox 
between  a  sovereign  authority  and  a  free  citizen  is  thus 
explained.  No  freedom,  except  for  a  single  being,  can 
be  absolute  and  complete.  Such  freedom  as  can  be  en- 
joyed by  all  must  from  its  nature  imply  a  compulsory 
resla-iction  on  the  action  of  each.  It  is  the  oflBce  of  the 
state  to  effect  this  restriction,  and  in  so  doing  to  bring 
liberty  into  being.  It  is  usual  to  attach  to  this  concep- 
tion of  individual  freedom  effected  by  the  existence  of 
a  coercive  state  the  term  "civil  liberty." 

A  further  point  of  great  importance  is  to  be  noted 
in  connection  with  the  present  topic.  It  is  true  that 
liberty  as  thus  defined  is  only  possible  for  the  indi- 
vidual by  the  action  of  the  state.  It  does  not  follow, 
however,  that  it  is  the  duty  of  the  state  to  find  the 
ideal  of  its  action  in  the  maintenance  of  individual 
liberty;  that  is  to  say,  to  confine  its  operating  to  en- 
forcing non-interference,  and  to  extend  its  coercive 
power  no  further  than  is  necessary  to  prevent  the  citi- 
zens from  interfering  with  one  another.    Writers  of 


THE  LIBERTY  OF  THE  INDIVIDUAL         73 

various  schools,  and  especially  the  individualists  of  the 
earlier  nineteenth  century,  have  held  this  to  be  the 
sole  duty  of  government.  The  conception  of  Uberty 
seemed  to  them  to  imply  that  no  infringement  of  the 
principle  could  be  justified.  But  the  question  natu- 
rally arises  whether  the  state  may  not  be  warranted  in 
exercising  a  positive  as  well  as  a  negative  coercion  over 
its  subjects.  May  it  not  with  reason  interfere  with  and 
curtaU  the  Uberty  of  a  citizen,  provided  that  the  general 
good  or  his  own  advantage  is  thereby  furthered?  The 
full  treatment  of  this  question  will  belong  to  our  dis- 
cussion of  the  proper  province  of  government.  All  that 
need  be  noted  in  the  meantime  is  that,  whether  the 
state  is  called  upon  to  maintain  the  liberty  of  the  indi- 
vidual, or  whether  it  is  held  advisable  that  the  state 
should  interfere  with  his  actions  in  a  positive  form,  the 
existence  of  liberty  is  not  logically  incompatible  with 
the  existence  of  the  state,  and  can  hardly  be  thought  of 
as  existing  apart  from  it. 

2.  Special  senses  sometimes  attached  to  the  term 
"liberty."  The  word  "hberty,"  in  addition  to  the 
vague  general  use  which  we  have  discarded  and  the 
definite  conception  of  civil  hberty  which  we  have 
adopted,  has  also  been  used  in  poUtical  writings  in  other 
special  senses.^  It  is  often  used  to  designate  a  condition 
of  national  independence.  When  we  refer  to  the  present 
Uberty  of  the  Greeks,  or  the  Uberation  of  the  Poles  as  a 
result  of  the  Great  War,  it  is  evidently  in  this  sense  that 
the  word  is  used.  It  is  perhaps  convenient  to  use  the 
expression  "national  Uberty"  to  indicate  freedom  of 
this  kind. 

1  An  excellent  analysis  of  the  different  political  significations  of 
the  term  is  given  in  Professor  Seeley'a  Introduction  to  Political  Science, 
lectures  v,  vi. 


74  THE  NATURE  OF  THE  STATE 

In  the  next  place,  there  is  a  use  of  "liberty"  which 
refers  neither  to  freedom  from  interference  nor  to  na- 
tional autonomy.  When  we  say  that  the  United  States, 
France,  and  Great  Britain  enjoy  the  advantages  of  a 
free  government,  we  mean  thereby  a  government  which 
is  chosen  by,  and  which  is  responsible  to,  the  general 
body  of  the  people.  "  Liberty  "  in  this  sense,  or  "  consti- 
tutional Uberty,"  as  it  may  be  called,  means  popular 
government  definitely  established.  Historically  speak- 
ing, we  often  use  the  term  "constitutional  liberty"  to 
refer  to  instances  where  not  all  the  people,  but  only 
a  minority  of  them,  exercised  the  power  of  controlhng 
the  government.  In  England  previous  to  the  reform 
and  extension  of  the  franchise  (1832,  1867,  1884),  the 
power  of  government  was  vested  in  the  hands  of  a  small 
minority  of  the  whole  nation.  Since,  however,  the  body 
of  the  people  followed  in  the  main  the  poUtical  lead  thus 
given,  and  looked  to  the  minority  in  question  (the  vot- 
ing class)  to  protect  them  from  possible  tyranny  of  the 
crown,  we  may  speak  of  this  state  of  things  as  constitu- 
tional Uberty.  Strictly,  however,  the  term  ought  only 
to  be  used  of  a  government  in  which  the  people  rule. 
For  if  the  name  be  appUed  to  a  system  in  which  the  gov- 
ernment is  responsible  only  to  a  minority  of  the  nation, 
it  implies  an  imwarrantable  disregard  of  the  political 
status  of  the  majority. 

Certain  American  writers  have  endeavored  to  estab- 
lish for  the  term  "civil  hberty"  a  connotation  different 
from  that  explained  above.  ^  They  claim  that  most 
European  writers  have  unduly  confused  the  idea  of  the 
state  with  that  of  the  government;  the  state  ought  to 
mean  that  fundamental  organization  of  the  community 
by  whose  authority  the  government  is  created,  and  the 

>  As  notably  J.  W.  Burgess,  Political  Science  and  Constitutional  Laxik 


THE  LIBERTY  OF  THE  INDIVIDUAL  75 

power  of  the  government  limited.  The  government 
should  mean  only  the  ordinary  mechanism  of  adminis- 
tration. It  is  in  this  sense  conceivable  that  the  state 
may  set  a  limit  to  the  action  of  the  government  as 
against  the  individual,  and  grant  to  the  latter  certain 
privileges  or  immunities  with  which  the  government 
may  not  interfere.  These  immunities  constitute  the 
domain  of  civU  liberty.  In  the  United  States,  according 
to  this  view,  the  organization  of  the  state  is  found  in 
the  body  that  makes  and  amends  the  Constitution.  By 
the  authority  of  this  body  it  is  forbidden  to  the  ordinary 
government  of  the  country  (President,  Congress,  etc.) 
to  interfere  with  the  religion  or  the  free  speech  of  the 
individual;  the  government  may  not  impose  an  export 
duty,  may  not  make  a  law  impairing  the  obligation  of 
contracts,  or  confer  a  title  of  nobility.  ^  The  civil  Hberty 
of  the  individual  is  therefore  defined  by  such  writers  to 
mean  all  those  rights  thus  granted  to  the  individual  by 
the  constitution-making  power.  Were  all  governments 
of  the  same  form  as  that  of  the  United  States  this  appli- 
cation of  the  term  "civil  hberty"  would  be  felicitous 
and  useful.  But  as  applied  to  the  governments  of  Eng- 
land, France,  Italy,  and  many  other  coimtries  a  diffi- 
culty occurs.  In  England  the  Parliament  (King,  Lords, 
and  Commons)  is  supreme.  It  is  therefore  (according 
to  this  interpretation)  the  state.  It  is  also  the  govern- 
ment, ordinary  and  regular.  It  is  hence  not  possible 
that  it  can  forbid  anything  to  itself  by  its  own  author- 
ity, or  guarantee  the  individual  the  possession  of  rights 
which  it  cannot  legally  set  aside.  The  conclusion  is 
obvious.  There  is  no  civil  liberty  in  the  constitutional 
law  in  Great  Britain.  To  assert  this  is  properly  equiv- 
alent to  asserting  that  there  can  be  no  civil  hberty  at  all 

*  Constitution  of  the  United  State*. 


76      THE  NATURE  OF  THE  STATE 

under  the  British  government.  "  I  pass  over  the  subject 
of  civil  liberty  in  the  constitution  of  England  and 
France  for  the  simple  and  entirely  convincing  reason 
that  there  is  none  in  either."  ^  This  being  so,  it  may 
well  be  doubted  whether  the  term  is  appropriately  used 
in  the  significance  thus  attached  to  it.  A  definition 
according  to  which  the  citizens  of  Haiti  enjoy  a  wide 
measure  of  civil  Uberty,  while  those  of  Great  Britain 
and  its  colonies  possess  none  at  all,  becomes  a  little 
absurd. 

3.  Organic  theory  of  the  state.  The  question  of  lib- 
erty and  sovereignty  as  hitherto  discussed  has  been 
purely  one  of  legal  relations.  It  forms,  however,  only 
a  part  of  the  wider  question  of  the  general  relation  of 
the  individual  to  the  state,  or  to  society  at  large.  The 
view  that  is  to  be  taken  of  the  position  in  which  the 
individual  stands  towards  the  state  is  of  the  highest 
importance,  for  on  it  will  depend  our  decision  as  to  the 
proper  province  of  the  action  of  government.  In  what 
has  been  said  in  the  present  chapter  and  in  connection 
with  the  statement  and  criticism  of  the  doctrine  of  the 
social  contract,  reference  has  been  made  to  two  con- 
flicting points  of  view.  In  the  one  instance  the  indi- 
vidual is  looked  upon  as  a  separate  seK-contained  unit 
who  joins  with  his  fellows  for  the  formation  of  civil 
society  in  a  purely  mechanical  fashion.  The  state  from 
this  point  of  view  becomes  merely  a  nimierical  aggre- 
gate.  It  is  not  justified  in  interfering  with  the  individual 

*  Burgess,  Political  Science  and  Constitutional  Law,  vol.  i,  part  11, 
bk.  n,  chap.  iv.  Burgess  does  not  deny  that  there  is  civil  liberty  in 
Great  Britain,  but  says  that  it  is  created  by  statute,  not  by  the  consti- 
tution. But  his  position  seems  inconsistent.  For  he  says  (vol.  i,  p. 
174)  that  individual  liberty  "is  a  domain  in  which  the  government 
shall  not  penetrate."  But  in  discussing  civil  liberty  under  the  British 
and  French  systems,  he  asserts  (vol.  i,  p.  262),  "Every  particle  of  civil 
liberty  in  both  systems  is  at  all  times  at  the  mercy  of  the  government." 


THE  LIBERTY  OF  THE  INDIVIDUAL         77 

further  than  to  prevent  his  interference  with  any  one 
else.  Such  a  theory  of  social  relations  is  often  spoken  of 
as  an  arithmetical,  mechanical,  or  monadistic  theory  of 
society.^  We  have  already  seen  fit  in  dealing  with  the 
social  contract  to  reject  such  a  view  of  the  relative  status 
of  the  individual  and  the  state. 

As  opposed  to  this  we  have  at  the  other  end  of  the 
scale  what  has  already  been  referred  to  as  the  "organic 
theory  of  society,"  or  of  the  state.  This  theory,  either 
entire  or  in  partial  form,  occupies  a  large  place  in  the 
economic,  political,  and  social  philosophy  of  our  time, 
and  merits,  therefore,  a  careful  examination.  What- 
ever be  the  earlier  origins  ^  to  which  it  may  be  traced, 
it  assumed  a  great  prominence  at  the  hands  of  various 
German  writers  of  the  middle  of  the  nineteenth  cen- 
tury, who  advanced  it  in  opposition  to  the  more  me- 
chanical view  of  society  held  by  the  dominant  individ- 
ualist school  in  economics  and  poHtical  philosophy. 
The  central  idea  of  the  theory  is  to  endeavor  to  set 
aside  the  contrast  between  the  individual  and  the  state 
by  amalgamating  them  into  one.  It  discards  all  such 
ideas  as  mutual  contract,  reciprocal  service,  infrangible 
immunities,  etc.  It  views  the  state  and  the  individual 
as  part  and  parcel  of  the  same  thing,  both  of  them 
being  included  in  what  may  be  called  the  social  organ- 
ism. As  is  the  relation  of  the  hand  to  the  body,  or  the 
leaf  to  the  tree,  so  is  the  relation  of  man  to  society. 

*  See  J.  S.  Mackenzie,  Introduction  to  Social  Philosophy,  chap.  m. 

*  The  philosophy  of  the  Greeks  may  be  said  to  afford  the  first  begin- 
nings of  the  organic  theory.  "  Man,"  says  Aristotle, "  is  a  political  ani- 
mal," and  the  whole  tendency  of  Greek  political  thought  was  to  insist 
on  the  subordination  of  the  individual  to  the  state.  (See  E.  Barker, 
Greek  Political  Theory,  1918.)  But  the  elaboration  of  the  theory  and 
its  express  application  to  the  problem  of  governmental  interference 
belongs  to  the  nineteenth  century.  Such  a  view  could  only  attain  its 
full  significance  after  the  establishment  of  the  evolutionary  theory  of 
the  biological  world. 


78  THE  NATURE  OF  THE  STATE 

He  exists  in  it,  and  it  in  him.  As  it  is  impossible  to 
consider  that  the  hand  has  a  separate  existence  from 
that  of  the  body,  so  is  it  impossible  to  divorce  the 
individual  from  society.  The  antithesis,  therefore,  be- 
tween the  single  citizen  and  the  collective  state  rests 
upon  a  false  basis,  and  imphes  a  view  of  society  that  is 
contrary  to  fact. 

4.  Criticism.  In  criticizing  this  theory  it  is  first 
necessary  to  know  to  what  extent  the  statement  that 
society  is  an  organism  is  intended  to  be  true.  Some 
writers  have  advanced  it  merely  as  an  analogy  designed 
to  elucidate  by  a  striking  comparison  the  nature  of 
social  organization.  The  continuity  and  gradual  evolu- 
tion of  the  state,  the  insensible  gradations  by  which 
it  develops  in  efficiency  and  complexity,  are  compared 
to  the  growth  of  a  plant  or  animal.  The  different  de- 
partments, councils,  officials,  etc.,  which  are  found  in 
a  modern  administration,  present  in  their  specialized 
functions  and  adapted  capabilities  an  analogy  with  the 
Bpecial  organs  of  a  living  structure.  The  single  individ- 
ual, without  whom  the  state  cannot  exist,  and  whose 
activities  presuppose  the  existence  of  the  state,  sug- 
gests the  germ  cell  which  forms  the  basis  of  a  living 
organism.  Viewed  in  this  light,  the  organic  theory  has 
met  with  a  very  wide  acceptance,  especially  by  the 
modem  German  school  of  writers  on  the  social  sciences. 
It  is  indeed  difficult  to  quarrel  with  this  or  any  other 
contention  as  long  as  it  remains  merely  in  the  form  of 
analogy.  When  we  say  that  society  is  like  an  organism 
we  are  expressing  an  opinion  of  a  very  indefinite  char- 
acter. The  point  of  the  statement  will  depend  on  the 
amount  of  the  likeness.  In  one  sense  every  man  is  like 
every  other;  in  another  sense  each  man  has  a  different 
appearance.   To  say,  therefore,  that  there  are  certain 


THE  LIBERTY  OF  THE  INDIVIDUAL  79 

things  about  society  which  suggest  an  organism,  is  to 
say  what  is  hardly  open  to  refutation.  The  real  point 
of  controversy  comes  in  when  we  consider  how  far  our 
opinions  on  social  and  political  problems  are  to  be  af- 
fected by  this  view.  Is  it  to  be  looked  on  merely  as  an 
interesting  and  ingenious  comparison,  or  are  we  to  see 
in  it  a  profound  truth  in  the  light  of  which  the  actual 
solution  of  social  difficulties  is  to  be  sought?  ^ 

It  may  perhaps  be  reasonably  claimed  that  the  im- 
portance attached  to  this  view  by  many  sociological 
writers  is  altogether  exaggerated.  It  is  hard  to  see  in 
what  way  it  offers  a  practical  programme  or  line  of 
direction  in  dealing  with  applied  poUtics.  The  indi- 
vidualistic theory,  dictating  the  abstinence  of  the  state 
from  all  positive  interference,  had  at  least  the  merit 
of  indicating  a  recognizable  course  of  conduct.  The 
utilitarian  theory,  propounding  the  greatest  good  of 
the  greatest  number  as  the  goal  of  social  effort,  offers 
also  an  objective  point  theoretically  distinct,  however 
much  its  special  applications  might  in  practice  be  open 
to  dispute.  But  the  organic  theory,  in  telling  us  that 
we  and  om*  institutions  grow  and  are  not  made,  hardly 
offers  a  practical  guide  to  political  conduct.  It  is  im- 
possible that  we  can  sit  politically  passive  and  watch 
ourselves  grow,  and  it  is  inconceivable  that  the  theory 
ought  to  be  interpreted  to  obstruct  all  deliberate  vo- 
litional effort,  and  to  substitute  for  it  a  self-contem- 
plating passivity.  To  regard  the  organic  theory  of 
society  as  offering  a  definite  solution  of  any  social 
problem  seems  erroneous.  The  true  purpose  that  it  has 
served  has  been  in  helping  to  destroy  the  once  preva- 

'  The  latter  is  the  opinion  expressed  by  Mr.  M'Kechnie  in  his 
Slate  and  the  Individual,  part  i,  chap.  i.  "This  theory,"  he  writes,  "is 
not  only  correct,  but  contains  the  germ  of  the  whole  truth  of  political 
philosophy." 


80       THE  NATURE  OF  THE  STATE 

lent  conception  that  individual  liberty  must  a  priori 
be  a  good  thing,  and  needs  not  to  be  considered  on  itf; 
merits. 

5.  Elaborate  analogies  of  Spencer,  Schaffle,  etc.*, 
the  personality  of  the  state.  By  some  authorities  the 
organic  theory  has  been  supported  not  as  a  useful 
analogy,  but  as  a  hteral  truth.  To  establish  this  fact 
they  have  analyzed  in  great  detail  the  industrial  and 
pohtical  structure  of  society,  and  shown  that  it  con- 
forms to  the  general  organic  type,  and  is  therefore  hter- 
ally  and  actually  an  organism.  Of  such  analysis,  that 
offered  by  Herbert  Spencer  is  the  most  familiar.  Spen- 
cer,^ it  is  true,  does  not  entirely  identify  the  social 
organism  with  the  living  organism.  Society,  he  says,  is 
an  organism,  but  "it  is  not  comparable  to  any  particular 
type  of  individual  organism,  animal  or  vegetable."  The 
analogy  that  he  institutes,  however,  is  carried  into  such 
detail  as  to  stop  httle  short  of  identification.  The  first 
point  of  resemblance  is  found  in  the  fact  that  societies, 
like  living  bodies,  begin  as  germs  (small  wandering 
hordes  of  people),  and  increase  continually  in  mass  and 
in  complexity  of  structure.  In  both  cases  this  increase 
in  mass  is  effected  either  by  simple  multiplication  of 
the  units  or  by  union  of  groups.  Thus  the  organic  inte- 
gration of  plants  of  the  lowest  order,  which  increase 
into  a  larger  form  by  "clustering"  into  one,  is  com- 
pared to  the  amalgamation  of  primitive  tribes.  Multi- 
phcation  and  fusion  of  units  may,  in  both  animal  and 
social  growths,  proceed  simultaneously.  The  progres- 
sive complexity  of  structure  is  shown  in  the  develop- 
ment of  society,  as  in  the  development  of  plants  and 
animals,  by  constant  differentiation  of  special  organs 
for  the  performance  of  special  functions.  In  a  rudimen- 

'  See  Principles  of  Sociology,  part  n. 


THE  LIBERTY  OF  THE  INDIVIDUAL  81 

tary  animal  organism  the  same  apparatus  acts  in  an 
imperfect  way  as  stomach  and  mouth,  or  as  stomach 
and  skin.  Gradually  each  of  these  separate  organs  is 
evolved  and  restricted  to  its  own  function.  An  original 
spinal  axis  of  an  elementary  character  becomes  sepa- 
rated into  its  vertebrated  parts,  the  head  differentiated 
from  the  backbone,  and  the  brain  from  the  skull.  So 
in  society,  separate  classes  —  kings,  priests,  medicine 
men  —  are  differentiated  from  the  original  mass,  and 
assigned  to  their  peculiar  activities.  The  division  of 
labor  in  the  society,  as  in  the  animal,  makes  it  a  Uving 
whole.  The  industrial  division  of  occupation  among 
weavers,  iron-workers,  food-growers,  etc.,  corresponds 
to  the  independent  functions  of  stomach,  heart,  and 
lungs.  The  original  structures  are  found,  on  examina- 
tion, to  resemble  closely  the  bodily  structures.  Spencer 
speaks  of  a  manufacturing  district  as  "secreting"  cer- 
tain goods;  a  seaport  town  "discharges  and  absorbs" 
them,  performing  a  duty  like  that  of  the  pores  of  the 
skin.  Society  has  its  "sustaining  system,"  or  parts 
devoted  to  alimentation.  These  are  the  great  produc- 
tive industries  —  the  agricultm-al  areas,  the  "iron- 
secreting"  districts,  etc.  There  is  also  the  distributing 
system  —  the  roads,  railroads,  and  canals,  which  serve 
as  the  blood-vessels  of  the  social  body.  The  press,  the 
telegraph,  telephone,  etc.,  serve  as  stimuli,  by  which 
the  nerve  centers  are  moved  to  action.  Finally,  there 
is  in  society,  as  in  the  living  organism,  the  regulating 
system  —  "nervo-motor"  in  the  one,  "governmental- 
military"  in  the  other.  These  are  evolved  by  the 
struggle  for  survival  against  the  rapacity  of  other 
organisms.  "  The  successive  improvements  of  the  organs 
of  sense  and  motion  have  indirectly  resulted  from  the 
antagonisms  and  competition  of  organisms  with  one 


82  THE  NATURE  OF  THE  STATE 

another."  The  wars  between  societies  originate  gov- 
ernmental structures,  and  are  causes  of  all  such  im- 
provements in  these  structures  as  increase  the  efficiency 
of  corporate  action  against  environing  societies.  The 
special  application  of  this  last  comparison  hes  in  the 
argument  advanced  by  Spencer  that  the  governmental 
organ,  like  every  other,  should  confine  itself  to  the 
particular  functions  for  which  it  has  been  evolved  — ■ 
protection  and  defense  —  and  should  abstain  from 
wider  action  in  the  field  of  positive  beneficence. 

As  already  said,  Spencer  does  not  completely  identify 
the  social  organism  with  the  Uving  plant  or  animal. 
The  chief  difference  is  found  in  the  fact  that  while  the 
parts  of  an  animal  form  a  concrete  whole,  society  is 
"discrete";  in  other  words,  "while  the  living  units 
composing  the  one  are  bound  together  in  close  contact, 
the  living  units  composing  the  other  are  free  and  not 
in  contact,  and  are  more  or  less  widely  dispersed." 
Hence  the  political  or  social  body  is  sensitive  only  in 
its  miits,  whereas  the  animal  organism  has  a  "senso- 
rium"  in  which  its  sentient  existence  is  centered.  Even 
this  distinction  Spencer  is  unwilUng  to  unduly  em- 
phasize. The  units  of  society,  though  not  in  physical 
contact,  affect  one  another  through  the  influence  of 
language  spoken  or  written;  there  is  thus  a  psycho- 
logical continuity  where  physical  coherence  is  lacking. 

A  still  more  complete  presentation  of  the  social 
organism  is  offered  by  the  late  Albert  Schaffle,  the  dis- 
tinguished Austrian  statesman  and  economist,  in  his 
Structure  and  Life  of  the  Social  Body.  Here  the  com- 
parison of  social  with  animal  forms  is  carried  to  an 
extreme  point,  stopping  httle  short  of  complete  identi- 
fication, though  the  author  professes  to  be  mindful  of 
the  differenc€)6  existing  between  the  two,  and  avoids 


THE  LIBERTY  OF  THE  INDIVIDUAL         83 

the  explicit  use  of  the  term  "organic."  Schaffle  speaks 
of  the  "morphology"  and  the  "physiology"  of  society, 
the  "social  limbs  of  technique,"  etc.  If  the  whole  of 
his  vast  work  is  to  be  viewed  as  an  analogy,  it  reaches 
the  point  where  such  elaborate  comparison  ceases  to  be 
either  of  interest  or  profit.  Others  of  the  modem  Con- 
tinental writers  —  for  instance,  Gumplowitz,  the  Polish 
publicist,  in  his  Sociological  Idea  of  the  State  (1892)  — 
flatly  and  absolutely  hold  that  the  organic  nature  of  the 
state  is  to  be  considered  not  as  an  illustration,  but  as 
a  hteral  fact.  Of  a  still  more  extreme  character  is  the 
contention  of  several  of  the  German  theorists  that  the 
state  is  a  person.  The  claim  that  the  state,  or,  if  one 
will,  the  government,  is  a  person  in  a  purely  legal  sense 
of  the  term  is  what  no  one  will  deny.  The  government 
being  an  owner  of  property,  a  collector  of  taxes,  a  bor- 
rower of  money,  etc.,  can  imdoubtedly  be  clothed  with 
an  abstract  personality.  But  the  writers  in  question  — 
Gierke,  for  example,  in  his  Fundamental  Concepts  of 
Public  Law  —  go  beyond  this.  With  them  the  person- 
ality of  the  state  is  not  abstract  but  actual;  out  of  the 
"social  side"  of  each  individual  composing  the  state  is 
compounded  a  new  person,  a  totality  of  purpose  which 
is  the  true  constituent  element  of  personality.  Blunt- 
Bchli  even  determines  the  sex,  maintaining  that  the  state 
is  male  and  the  church  female.^ 

6.  Criticism.  This  extreme  theory  of  the  personality 
of  the  state  it  is  hardly  necessary  to  criticize.  It  be- 
longs to  that  class  of  abstractions  which  may  mean 
much  to  the  nation  that  originates  them,  but  which 
seem  to  dissolve  in  passing  through  the  prism  of  Anglo- 
Saxon  literalism.    The  general  organic  theory  merits, 

'  On  the  subject  of  the  personality  of  the  state  consult  also  Jellinek, 
AUgemeine  Siaatalehre  (1900). 


84  THE  NATURE  OF  THE  STATE 

however,  a  special  treatment.^  Interesting  as  is  the 
parallel  between  the  collective  aspect  of  humanity  and 
the  life  of  a  single  organic  unit,  the  differences  between 
the  two  appear  on  impartial  examination  so  great  that 
the  analogy  cannot  be  looked  on  as  a  true  guide  to 
social  policy,  or  a  true  expression  of  man's  relations  to 
his  environment.  The  difference  that  Spencer  masks 
under  the  cognate  terms  "concrete"  and  "discrete,"  is 
in  reality  of  a  fundamental  character.  In  neither  the 
physical  nor  the  metaphysical  sense  of  the  terms  is  it 
true  that  the  individual  is  Hterally  a  part  of  society. 
The  existence  of  each  human  being  is  a  fact  apart.  The 
"existence"  of  society  is  only  an  abstraction.  Society 
has  no  single  brain,  no  "social  sensorium";  it  has  no 
single  physical  life.  This  distinction  is  therefore  more 
than  a  mere  divergence  of  special  quaUties.  It  is  essen- 
tial and  absolute  —  it  is  the  difference  between  "black" 
and  "white,"  and  between  "yes"  and  "no."  Even  if 
we  accept  the  analogy  as  only  an  analogy,  it  does  not 
follow  that  it  is  always  a  proper  guide  for  our  social 
conduct.  Too  great  an  amalgamation  of  the  individual 
and  the  state  is  as  dangerous  an  ideal  as  a  too  great 
emancipation  of  the  individual  will.  Individual  varia- 
tion, individual  "unUkeness,"  and,  in  a  sense,  individual 
isolation  of  effort,  is  as  necessary  for  the  welfare  of  man- 
kind as  collective  activity  and  mutual  support.  The 
organic  theory  of  society,  deprived  of  its  ingenious  bio- 
logical setting,  presents  only  one  phase  of  the  truth, 
erring  in  one  direction  as  much  as  extreme  individualism 
has  erred  in  the  other. 

'  For  the  criticism  of  the  organic  theory  see  J.  S.  Mackenzie, 
IrUrodttction  to  Social  Philosophy,  chap,  m,  and  W.  W.  Willoughby, 
The  Nature  of  the  State,  chap.  lu. 


THE  LIBERTY  OF  THE  INDIVIDUAL         85 

READINGS  SUGGESTED 

Seeley,  Sir  J.  R.,  Introduction  to  Political  Science  (1896),  lec- 
tures, v,.vi. 
M'Kechnie,  W.  S.,  The  State  and  the  Inditndual  (1896),  chap. 

XXII. 

Giddings,  F.  H.,  Principles  of  Sociology  (1899),  bk.  i,  chap.  iv. 

FURTHER  AUTHORITIES 

Ritchie,  D.  G.,  Natural  Rights  (1895). 

Lieber,  F.,  Civil  Liberty  (1852). 

MiU,  J.  S.,  Liberty  (1859). 

Burgess,  J.  W.,  Political  Science  and  Constitutional  Law  (1898), 

vol.  I. 
Mackenzie,  J.  S.,  Introduction  to  Social  Philosophy  (2d  edition, 

1895). 
Spencer,  H.,  Principles  of  Sociology,  vol.  i,  part  n  (3d  edition, 

1893). 
Schaffle,  A.,  Bau  und  Leben  des  Sozialen  Korpers  (2d  edition, 

1896). 
Jellinek,  G.,  Das  Recht  des  Modemen  Staates  (1900). 
Fichte,  J.  G.,  Science  of  Rights  (translation,  1889). 
Woolsey,  T.,  Political  Science,  vol.  i  (1878). 
Dunning,  W.  A.,  History  of  Political  Theories  from  Luther  to 

Montesquieu  (1905). 


CHAPTER  VI 
RELATION  OF  STATES  TO  ONE  ANOTHER 

1,  External  aspect  of  the'state;  regulation  of  its  conduct  towards  other 
states  —  2.  Evolution  of  international  relations:  first,  second,  and 
third  periods  —  3.  Scope  and  content  of  international  law  —  4.  Pro- 
priety of  the  term  —  6.  International  arbitration — 6.  The  League 
of  Nations. 

I.  External  aspect  of  the  state;  regulation  of  its 
conduct  towards  other  states.  Viewed  in  a  purely  theo- 
retical light,  every  state  is  an  absolutely  independent 
unit.  Its  sovereignty  is  unlimited,  and  it  renders  polit- 
ical obedience  to  no  outside  authority;  it  has  no  organ- 
ized coercive  relation  with  any  other  pohtical  body. 
Such  theoretical  isolation  is  the  prime  condition  of  its 
existence  as  a  state,  and  its  political  independence  is 
one  of  its  essential  attributes.  This  is  what  Hobbes 
meant  in  saying  that,  in  regard  to  one  another,  separate 
states  are  to  be  viewed  as  in  a  "state  of  nature."  Yet 
while  this  is  true  in  a  purely  formal  and  legal  sense,  it  is 
nevertheless  the  case  that  in  actual  fact  different  states 
stand  in  close  contact  with  one  another  in  a  variety  of 
ways.  The  mutual  intercourse  and  communication  of 
their  citizens,  trade,  commerce,  and  various  common 
interests,  bring  separate  states  into  permanent  relations 
demanding  some  sort  of  regulation.  The  fact  that  in 
the  civilized  world  the  citizens  of  one  country  very 
largely  share  in  the  thought,  the  art,  and  the  literature 
of  neighboring  communities,  runs  counter  to  the  idea  of 
political  exclusiveness.  The  political  as  well  as  the  social 
and  cultm-al  institutions  of  any  modern  state  are  largely 
aflfected  by  its  contact  with  other  states.  Especially  is 
this  the  case  where  the  citizens  of  countries  politically 


RELATION  OF  STATES  TO  ONE  ANOTHER    87 

separate  speak  a  common  language,  and  where  a  kin- 
dred descent  enables  them  to  look  back  to  the  same 
history  and  traditions  in  the  past. 

It  is,  therefore,  easily  understood  that  in  the  evolu- 
tion of  their  dealings  with  one  another  in  relation  to 
diplomacy  and  civic  intercourse  the  action  of  modem 
states  shows  an  increasing  tendency  to  conform  to  a 
generally  recognized  usage.  Even  the  conduct  of  war 
conforms,  in  theory  at  least,  to  a  code  of  regulations 
designed  to  mitigate  the  suffering  it  involves,  and  to 
reduce  to  a  minimum  the  injury  it  occasions  to  the 
commerce  of  the  world.  These  rules  and  usages  which 
regulate  the  peaceful  intercourse  of  independent  na- 
tions, and  indicate  a  recognized  method  of  warfare 
adopted  by  general  consent,  are  not  to  be  regarded  as 
fixed  and  permanent.  They  are  rather  in  a  formative 
and  imperfect  stage  of  development.  But  the  study 
of  modern  political  institutions  is  not  complete  with- 
out an  analysis  of  the  nature  of  the  bond  thus  created 
between  different  states,  the  extent  of  its  obligation, 
and  its  especial  significance  for  the  future.  Political 
science  must  take  accoimt  not  only  of  the  internal 
organization  of  the  state,  but  of  its  external  relations 
in  so  far  as  they  assume  a  regular  and  definite  character. 

Imperfect  as  they  are,  the  "rules  which  determine 
the  conduct  of  the  general  body  of  civilized  states  in 
their  dealings  with  one  another  are  termed  'Interna- 
tional Law.' "  ^  The  question  at  once  arises  whether  the 
existence  of  such  regulations  can  be  harmonized  with 
the  sovereignty  of  the  individual  state.  As  we  have 
understood  it,  the   term  "law"  is  properly  to  be  re- 

'  This  is  the  definition  given  by  Professor  T.  J.  Lawrence  (Interna- 
tional Law,  chap.  i).  In  attempting  to  define  international  law  one 
meets  at  once  the  difficulty  as  to  tha  extent  of  its  saaction. 


88      THE  NATURE  OF  THE  STATE 

stricted  to  the  command,  express  or  tacit,  of  a  supreme 
coercive  authority;  we  have  seen  that  it  is  probably  inex- 
pedient to  use  it  in  reference  to  customary  observances 
not  dehberately  controllable  by  a  political  superior.  In 
other  words,  "  law  "  has  been  restricted  to  mean  the  com- 
mand of  the  state,  the  two  terms  being  correlative  to 
one  another.  Such  being  the  case,  it  is  now  to  be  asked 
whether  the  term  "international  law"  is  properly  ap- 
plied, and  whether  the  sanction  or  compelling  force 
behind  its  rules  and  regulations  is  sufficient  to  entitle  it 
to  be  considered  as  really  law.  To  undertake  this  in- 
quiry it  will  be  necessary  first  to  pass  very  briefly  in 
review  the  evolution  of  international  relations,  and  the 
interpretations  put  upon  them  in  political  theory,  and 
in  the  second  place  to  indicate  the  scope  and  extent  of 
the  rules  of  international  law  as  now  existing.  By  doing 
this,  its  true  character,  both  as  it  is  and  as  it  may 
become,  will  be  set  in  a  clearer  light. 

2.  Evolution  of  international  relations:  first,  second, 
and  third  periods.  The  evolution  of  international  rela- 
tions may  be  divided  into  three  great  stages.  The  first 
embraces  the  period  from  the  origins  of  European  civi- 
lization till  the  rise  of  the  Roman  Empire,  the  second 
extends  from  that  date  until  the  Peace  of  Westphalia 
(1648),  and  the  third  period  from  the  Peace  of  Westpha- 
lia until  the  present  day.^  During  the  first  period  we 
find  no  recognition  of  international  obligations  as  such. 
The  claims  and  duties  associated  with  kinship  were  rec- 
ognized as  a  bond  between  communities  of  a  common 
descent  and  tongue.  But  between  tribes  and  nations 
ahen  to  one  another  there  was  no  recognized  system 
of  peaceful  intercourse  or  acknowledged  principles  of 

*  Division  given  by  Lawrence,  IntematioTial  Law.  See  also  Walker, 
Hiatory  of  the  Law  of  Nations;  Halleck,  International  Law,  chap.  i. 


RELATION  OF  STATES  TO  ONE  ANOTHER    89 

legitimate  warfare.  The  tribes  of  the  Israelites  ob- 
served in  their  dealings  with  one  another  the  bond  of 
common  birth;  they  viewed  themselves  as  forming  a 
political  system,  each  member  of  which  had  certain  in- 
definite obligations  towards  the  others,  while  all  of 
them  were  disconnected  from  the  outer  world  of 
Gentiles.  In  the  same  way  the  city-states  of  ancient 
Greece,  though  jealously  guarding  their  political  auton- 
omy, felt  themselves  bound  by  the  ties  of  race  to  their 
fellow-Greeks,  a  relation  which  found  its  expression  in 
the  Amphiktyonic  Council,  the  federations  of  cities, 
and  the  observance  of  a  rudimentary  code  of  welfare. 
But  towards  the  outside  world  —  the  barbarians,  as  the 
Greeks  called  them  —  no  such  obligations  existed.  In  so 
far  as  the  Greeks  recognized  a  system  of  interstate  re- 
lations, it  was  applicable  only  to  the  Hellenic  people. 
The  Romans,  also,  previous  to  their  imperial  aspirations 
of  universal  dominion,  occupied  the  same  theoretically 
isolated  position.  Rome,  it  is  true,  during  the  repub- 
lican period  of  her  history,  entered  into  treaties  with 
the  Samnites  and  other  Italian  tribes.  The  Romans  had 
also  certain  systematic  observances  which  bear  some 
resemblance  to  a  code  of  international  conduct.  But  the 
Jus  Fedale  was  merely  a  system  of  ceremonial  acts 
which  constituted  the  formalities  thought  necessary  for 
a  declaration  of  war,  the  conclusion  of  a  treaty,  etc. 
The  Jus  Gentium  offers  in  its  name  a  confusing  analogy 
with  international  law.  Its  precise  nature  is  a  matter 
of  some  controversy,  but  it  is  safe  to  say  that  it  was 
a  code  of  regulations  which  applied  not  to  the  deal- 
ings of  one  nation  with  another,  but  to  the  dealings 
of  citizens  belonging  to  different  nations.  It  took  its 
name  most  probably  from  the  fact  that  its  rules  were 
presumed  to  consist  of  principles  of  conduct  common 


90      THE  NATURE  OF  THE  STATE 

to  the  laws  of  all  nations.^  But  in  none  of  these  cases 
do  we  get  a  standing  theory  of  international  relations. 
Conduct  towards  outside  nations  might,  of  course,  be 
influenced  by  motives  of  religion,  of  friendship,  or  of 
expediency,  but  we  find  nothing  approachiug  to  a  sys- 
tematized view  of  the  relative  position  occupied  by 
poUtical  societies,  each  possessing  towards  the  rest  a 
definite  status  with  standing  rights  and  standing  duties. 
In  viewing  the  second  period,  that  following  the 
establishment  of  the  world  empire  of  Rome,  we  find 
the  outlook  entirely  changed.  The  Romans  had  made 
themselves  masters  of  the  known  world,  and  from  the 
pride  of  their  exalted  position  originated  a  new  theory 
of  political  relations.  The  universal  sovereignty  of  a 
single  power  became  the  dominant  idea,  the  theoretical 
ground  plan  of  poHtical  institutions.  The  idea  of  a  com- 
mon superior  holding  the  supremacy  over  all  the  polit- 
ical subdivisions  of  the  world  appealed  at  once  by  its 
grandeur  and  its  logical  consistency.  It  endured  in 
theory  long  after  it  had  vanished  in  fact.^  Even  as  a 
fact,  universal  sovereignty,  in  territorial  extent,  if  not 
in  intensity,  seemed  at  the  time  of  Trajan  (a.d.  98-117) 
to  reach  its  reahzation.  The  "appeal  to  Cffisar"  repre- 
sented everywhere  the  recourse  to  a  final  authority. 
The  actuality  thus  lent  to  the  conception  was  strength- 
ened by  the  universaUty  of  the  Christian  reUgion, 
which  became  after  the  conversion  of  Constantino 
(a.d.  312)  the  state  religion  of  the  imperial  system. 
Even  after  the  decline  of  the  imperial  power  under  the 

1  For  the  jics  gentium,  see  Sir  Henry  Maine's  International  Law; 
Halleck,  International  Law,  chap.  i.  Walker  cites  various  instances  of 
the  term  jus  gentium  used  in  reference  to  international  obligations  and 
approximating  in  its  meaning  to  public  international  law. 

«  Dante,  in  his  De  Monarchia,  arguing  on  the  imperial  side  of  the 
great  controversy  of  the  Middle  Ages,  undertakes  to  show  the  need  of 
a  angle  emperor,  or  sovereign,  with  power  over  all  others. 


RELATION  OF  STATES  TO  ONE  ANOTHER    91 

disruptive  force  of  the  barbarian  invasions,  the  idea  of 
universal  dominion  as  a  necessary  basis  of  political  life 
still  survived.  The  restoration  of  the  Roman  Empire 
by  Charlemagne  (a.d.  800)  served  to  give  expression  to 
this  ideal.  But  in  the  succeeding  centuries  the  concep- 
tion of  the  nature  of  the  political  constitution  of  the 
universe  underwent  a  vital  change.  The  church  pre- 
sented itself  not  as  a  complementary,  but  as  a  rival 
power.  It  became  necessary  in  theory  to  divide  imi- 
versal  dominion  between  the  secular  and  the  spiritual 
sovereigns,  whose  conflicting  pretensions  helped  to 
break  down  the  conception  of  a  single  final  authority.* 
The  feudal  tenure  of  land  gradually  brought  into  prom- 
inence the  notion  of  territorial  sovereignty  (political 
power  operative  not  as  over  a  people,  but  over  a  certain 
territory),  on  the  basis  of  which  arose  the  modern 
theory  of  territorially  independent  states.  Finally  the 
religious  schism  of  the  Reformation  destroyed  the  idea 
of  the  spiritual  unity  of  mankind.  The  Peace  of  West- 
phalia (a.d.  1648),  which  closed  the  Thirty  Years'  War 
in  central  Europe  between  the  forces  of  Catholicism 
and  Protestantism,  may  be  taken  as  indicating  the  close 
of  the  era  and  the  final  disappearance  of  the  theory  of 
universal  sovereignty. 

During  the  third  period  —  from  1648  until  the  pres- 
ent day  —  the  theory  of  international  relations  has 
been  reconstructed  on  a  new  basis  of  political  independ- 
ence and  territorial  sovereignty.  Modern  international 
law  is  essentially  the  product  of  this  period.  At  the 
opening  of  this  era  the  destruction  of  the  earlier  system 
and  the  ideas  which  accompanied  it  seemed  to  have 

>  For  the  great  mediaeval  controversy  between  the  Empire  and  the 
Papacy  see  Bryce,  Holy  Roman  Empire,  and  Dunning,  Political  Theo- 
ries Ancient  and  Mediceval. 


92      THE  NATURE  OF  THE  STATE 

removed  the  basis  of  international  dealings  and  to 
reduce  the  monarchies  of  Europe  to  the  anarchy  of 
the  state  of  nature.  The  savagery  of  the  European 
wars  of  the  sixteenth  and  seventeenth  centuries  threw 
into  a  strong  Ught  the  need  for  a  reconstruction  of  the 
theory  of  the  interrelation  of  poHtical  communities, 
now  that  the  idea  of  a  single  common  superior,  either 
temporal  or  spiritual,  was  no  longer  tenable.  It  was 
this  situation  which  called  forth  the  writings  of  the 
great  Dutch  jurist  Hugo  Grotius,  in  which  were  laid  the 
foundations  of  modem  international  law.  Grotius  and 
his  followers  ^  found  the  basis  for  their  doctrine  of  in- 
ternational obUgations  in  the  reconstruction  of  the  idea 
of  a  law  of  nature  long  ago  assumed  by  the  Stoic  philos- 
ophers in  reference  to  the  relations  of  individual  men. 
According  to  this  doctrine  there  was  supposed  to  exist 
in  the  very  nature  of  things  a  code  of  moral  obliga- 
tions of  man  to  man,  which  did  not  depend  for  its 
validity  upon  human  enactment.  It  existed  antecedent 
to  any  system  of  government  and  law  and  could  be  dis- 
covered by  the  natural  Ught  of  reason.  "  The  principles 
of  natural  law,"  says  Grotius,  "if  you  attend  to  them 
rightly,  are  in  themselves  patent  and  evident  almost  in 
the  same  way  as  things  which  are  perceived  by  the 
external  senses."  Such  a  theory  of  natural  law  is  essen- 
tially fallacious,  and,  as  has  been  already  seen,  it  dis- 
integrates upon  a  closer  analysis.  ^  Nevertheless  it 
served  a  useful  purpose  in  offering  a  possible  starting- 
point  for  constructing  a  system  of  mutual  rights  and 

*  The  chief  work  of  Grotius  is  his  De  Jure  Belli  ac  Pads  (1625). 
Piffendorf  (a  German,  for  some  time  secretary  of  state  at  Stockholm) 
published  his  De  Jure  Naturae  et  Gentium  in  1672;  Bynkerschoek's 
Qucestionea  Juris  Pvblici  appeared  in  1737. 

•  In  reference  to  the  history  and  criticism  of  the  theory  of  a  law  of 
tiature  Professor  Ritchie's  Natural  Kighta  may  be  consulted. 


RELATION  OF  STATES  TO  ONE  ANOTHER    93 

duties  existing  between  states  without  a  common  supe- 
rior. This  theoretical  assumption  of  a  determinable 
and  universally  binding  law  of  nature,  though  it  aJBFords, 
historically  speaking,  the  starting-point  of  international 
law,  is  by  no  means  its  only  source  and  basis  as  it  now 
exists.  The  major  part  of  it  rests  upon  the  successive 
treaties  and  conventions  by  which  the  great  states  of 
the  world  have  adopted  certain  more  or  less  defined 
principles  to  regulate  their  intercourse  with  one  an- 
other in  peace  and  war.  At  the  beginning  of  the  era 
stands  the  Treaty  of  WestphaUa,  to  which  all  the  Con- 
tinental sovereigns  of  Europe  (except  the  Pope  and  the 
Sultan)  were  parties,  and  in  which  "the  representatives 
of  civihzed  Europe  united  to  proclaim  formally  the 
erection  upon  the  ruins  of  world-sovereignty  of  an  inter- 
national system  of  states,  unequal  indeed  in  power,  but 
claiming  each  to  be  independent  and  each  to  exercise  an 
exclusive  jurisdiction  within  definite  territorial  limits."  * 
Of  the  later  treaties  some  are  mainly  concerned  with 
the  allotment  of  territory.  Of  this  character  is  the 
Treaty  of  Utrecht  (1713),  which  closed  the  long  war 
against  Louis  XIV,  and  the  Treaty  of  Paris  (1763)  at 
the  end  of  the  Seven  Years'  War.  In  others  a  funda- 
'  mental  point  is  the  recognition  of  sovereignty,  as  in  the 
Treaty  of  Versailles  (1783) ,  recognizing  the  independence 
of  the  United  States,  and  in  the  Treaty  of  Paris  (1856), 
where  the  independence  and  integrity  of  the  Ottoman 
Empire  are  guaranteed  ^  and  whereby  it  is  admitted 
"into  the  pubhc  law  and  system  of  Europe."  In  other 
treaties  principles  of  conduct  are  adopted  for  future 
guidance.  Thus  at  the  Peace  of  Utrecht  four  of  the 
signatory  powers  accepted  the  principle  that  real  prop- 

^  Walker,  op.  cit.,  part  i,  chap.  ii. 

*  By  Great  Britain,  Austria,  France,  Pniasis,  Russia,  and  Sardinia. 


94      THE  NATURE  OF  THE  STATE 

erty  confiscated  from  the  subjects  of  an  enemy  should 
be  returned  at  the  close  of  the  war.  The  Treaty  of  1841  ^ 
in  regard  to  the  navigation  of  the  Dardanelles  and  the 
Bosphorus  asserts  the  territorial  jurisdiction  of  a  state 
over  adjacent  waters.  The  international  law  in  respect 
to  neutral  commerce  and  maritime  capture  has  been  the 
subject  of  a  long  series  of  treaty  clauses.  The  principle 
that  "free  ships  make  free  goods,"  "^  adopted  (from  older 
precedents)  by  the  United  States  in  the  French  treaties 
of  1778  and  1800,  gradually  gained  a  general  assent 
and  was  recognized  in  1856  in  the  Declaration  of  Paris, 
which  accompanied  the  trpaty  already  mentioned.  An 
equally  important  instance  of  principles  of  international 
conduct  consohdated  by  treaty  is  seen  in  the  Treaty  of 
Washington  (1871),  between  the  United  States  and 
Great  Britain;  here  the  duty  of  neutral  powers  to  use 
a  proper  diligence  in  preventing  their  territory  from 
being  used  as  a  basis  of  operation  and  equipment  by  a 
belligerent  is  accepted  as  a  binding  rule.' 

In  addition  to  dehberate  assent  to  treaty  provisions 
nations  may  express  their  adherence  to  rules  of  inter- 
national conduct  in  various  other  ways.  Public  docu- 
ments issued  by  a  state  in  the  form  of  proclamations  or 
manifestoes  to  its  subjects  on  the  outbreak  of  a  war,* 
enjoining  their  observance  of  certain  regulations  in  ref* 
erence  to  belligerents  and  neutrals  are  of  this  class.  A 
further  source  of  international  law  may  be  found  in  the 

*  Signed  by  Austria,  France,  Great  Britain,  Prussia,  Russia,  and 
Turkey.  See  Alison,  History  of  Europe  from  the  Fall  of  Napoleon,  vol. 
VI,  chap,  xxxrv. 

*  See  Lawrence,  op.  eit. 

*  Text  of  treaty,  art  6.   See  Annual  Register,  1871. 

*  Compare  in  this  connection  the  British  Order  in  Council  of 
August  20,  1914,  in  regard  to  the  Declaration  of  London.  Much  in- 
teresting material  in  this  connection  is  found  in  T.  Baty  and  J.  H. 
Morgan,  War:  Its  Conduct  and  Legal  Results.   (1915.) 


RELATION  OF  STATES  TO  ONE  ANOTHER    95 

decisions  of  prize  courts,  or  special  tribunals  whose 
business  it  is  to  adjudicate  on  the  legality  of  captures 
made  at  sea  in  time  of  war.  Lastly  may  be  cited  the 
opinions  expressed  by  the  great  jurists  who  have 
written  on  the  subject.  It  goes  without  saying  that  the 
mere  opinion  of  any  individual  writer  has  of  itself  no 
binding  force.  But  since  all  written  laws  and  regulations 
must  be  submitted  to  the  process  of  interpretation,  the 
opinion  of  an  eminent  speciahst  as  to  the  proper  inter- 
pretation of  a  recognized  formula  is  evidently  of  force, 
and  it  has  always  been  customary  to  cite  as  testimony 
the  opinions  of  international  jurists.  Kent  in  his  Com- 
mentaries ^  states  the  point  thus:  "In  cases  where  the 
principal  jurists  agree,  the  presumption  will  be  very 
great  in  favor  of  the  solidity  of  their  maxims;  and  no 
civilized  nation  that  does  not  arrogantly  set  all  ordi- 
nary law  and  justice  at  defiance  will  venture  to  disre- 
gard the  uniform  sense  of  the  established  writers  on 
international  law." 

3.  Scope  and  content  of  international  law.  Let  us 
consider  very  briefly  the  range  of  the  subject-matter  of 
the  international  code  that  has  grown  up  on  this  basis. 
It  presumes  as  its  starting-point  a  number  of  separate, 
independent  states,  aU  of  which  are  absolutely  equal  in 
rights.  "No  principle  of  law  is  more  universally  ac- 
knowledged," said  Chief -Justice  Marshall,  "than  the 
perfect  equaUty  of  nations.  Russia  and  Geneva  have 
equal  rights.  It  results  from  this  equahty  that  no  one 
can  rightfully  impose  a  rule  on  another.  Each  legislates 
for  itself,  but  its  legislation  can  operate  on  itself  alone." 
Next  to  the  establishment  of  this  cardinal  proposition 
comes  the  discussion  of  the  territorial  Umits  of  juris- 
diction, the  relation  of  the  sovereign  power  of  a  state  to 

»  Commentaries,  vol.  1,  p.  19. 


96  THE  NATURE  OF  THE  STATE 

the  adjacent  waters  of  its  coast.  With  this  is  connected 
the  question  of  the  legitimate  means  of  increasing  terri- 
torial jurisdiction,  and  the  vaUdity  of  claims  arising 
from  conquest,  cession,  original  settlement,  and  so  forth. 
Rules  are  also  laid  down  in  regard  to  the  jiu"isdiction 
and  responsibiUty  of  a  state  in  reference  to  its  subjects 
while  resident  abroad.  These  with  other  questions  of 
like  character  constitute  the  subject-matter  of  inter- 
national law  as  applied  to  nations  at  peace  with  one  an- 
other —  the  "law  of  peace,"  as  it  is  called.  The  larger 
part  of  the  code,  however,  is  occupied  with  the  rules  of 
war.  Unfortunately  international  law  has  as  yet  never 
been  able  to  offer  any  binding  system  according  to  which 
disputes  may  be  settled  in  a  peaceful  manner.  Even  the 
existence  of  the  League  of  Nations  established  by  the 
principal  alhed  powers  in  1919,  does  not,  as  will  be 
shown  later,  in  and  of  itself,  enforce  such  a  settlement. 
International  law  has  also  been  compelled  to  assume 
that  controversies  will  in  the  last  resort  be  settled  by 
force  of  arms.  The  best  that  it  has  been  able  to  do  in 
this  case  is  to  prescribe  certain  regulations  whereby 
the  conduct  of  war  might  be  as  humane  as  possible  and 
may  occasion  the  least  possible  injmy  to  the  property 
and  commerce  of  non-combatant  powers.  For  this 
purpose  international  law  as  it  existed  before  the  Great 
War  defined  the  legitimate  agents  and  methods  of  war; 
it  prohibited,  for  example,  the  use  of  bullets  which  oe 
casion  needless  suffering,  the  recourse  to  assassination 
poisoning,  etc.  It  indicated  for  the  use  of  belligerents 
a  system  of  communication  with  one  another  by  flags 
of  truce,  passports,  and  safe-conducts.  What  was  still 
more  important,  international  law  contained  an  elab- 
orate set  of  regulations  in  regard  to  the  rights  and  ob- 
ligations of  neutral  states  in  time  of  war;  as  far  as 


RELATION  OF  STATES  TO  ONE  ANOTHER    97 

possible  it  permitted  the  trade  of  neutral  ships  to  and 
from  the  ports  of  belligerent  powers  to  continue  un- 
disturbed. Only  when  the  trade  in  question  was  with 
ports  actually  blockaded,  or  consisted  in  a  commerce 
of  articles  useful  for  purposes  of  war,  did  it  become 
legitimate  for  a  belligerent  power  to  interfere  with  it. 
It  was  in  particular  the  law  of  neutrality  that  was 
extensively  developed  in  the  eighteenth  and  nineteenth 
centuries,  and  had  come  to  constitute  the  most  im- 
portant part  of  international  law.  The  extent  to  which 
the  whole  basis  and  status  of  this  code  has  been  altered 
by  the  Great  War  is  a  matter  of  controversy  that  will 
be  discussed  in  a  later  paragraph. 

4.  Propriety  of  the  term.  Taken  altogether,  this 
systematized  regulation  of  international  deaUngs,  both 
in  peace  and  war,  presented  an  imposing  appearance, 
and  the  code  of  rules  which  was  thus  adopted  bore  a 
strong  analogy  to  the  internal  or  municipal  regulation 
of  any  particular  state.  But  it  will  be  clear,  from  what 
has  gone  before,  that  there  was  and  is  a  difference  be- 
tween the  two  of  an  important  character.  The  observ- 
ance of  the  municipal  law  is  compulsory  upon  the  in- 
dividual citizen.  If  he  attempts  to  violate  it  he  is  re- 
strained, or  at  any  rate  punished  after  the  fact  by  the 
physical  force  controlled  by  his  government.  But  there 
IS  no  such  definite  obUgation  upon  the  individual  state 
to  comply  with  the  principles  of  international  law.  A 
state  which  undertakes  to  violate  them  may  or  may  not 
meet  with  punishment;  the  state  upon  whose  rights 
(under  international  law)  another  infringes  may  or  may 
not  resort  to  arms;  and  even  in  the  event  of  armed 
conflict  the  injured  power  may  meet  with  defeat.  It  is 
true  that  for  a  certain  number  of  the  states  of  the  world 
now  united  in  the  League  of  Nations,  there  has  come 


^  THE  NATURE  OF  THE  STATE 

into  existence  a  new  kind  of  guarantee,  or  sanction  of 
rights  and  duties,  covering  a  part  of  the  field  of  inter- 
national dealings.  But  it  is  open  to  question  whether 
the  new  situation  is  materially  different  from  that  which 
preceded  it. 

It  is  on  the  grounds  indicated  that  are  based  the  crit- 
icisms of  the  appUcabihty  of  the  term  "international 
law,"  and  of  the  status  and  character  of  its  rules,  that 
have  frequently  been  advanced.  "I  think,  my  Lords," 
Lord  Salisbury  once  said  to  the  House  of  Lords,  "we 
are  misled  in  this  matter  by  the  facility  with  which  we 
use  the  phrase  international  law.  International  law  has 
not  any  existence  in  the  sense  in  which  the  term  law 
is  usually  understood.  It  depends  generally  upon  the 
prejudices  of  the  writers  of  the  textbooks.  It  can  be 
enforced  by  no  tribunal,  and,  therefore,  to  apply  to  it 
the  phrase  Law  is  to  some  extent  misleading,"  The 
same  objection  is  urged  in  detail  by  Austin  (the  leader 
of  the  English  analytical  school  of  jurists)  in  his  Lec- 
hires  on  Jurisprudence.  Since,  according  to  Austin, 
the  essence  of  a  law  lies  in  its  enforcement,  the  name 
"international  law"  is  improper;  the  rules  in  question 
belong  to  the  general  domain  of  what  Austin  calls 
"positive  morality,"  or  rules  imposed  by  current  opin- 
ion (as  also  are  the  "laws"  of  fashion  and  the  "laws" 
of  honor),  but  not  coercively  enforced.^  The  regula- 
tions affecting  the  conduct  of  poUtical  states  towards 
each  other  could  only  be  termed  "law"  in  the  Austin- 
ian  sense  if  there  were  in  existence  some  superior  power 
competent  and  willing  to  guarantee  their  enforcement. 
Such  a  power  might  be  imagined  as  existing  in  the  shape 
of  a  general  federation  or  league  of  states  pledged  to 
the  recognition  of  the  international  code  and  united 

*  Austin,  Jurisprudence,  lectiire  v. 


RELATION  OF  STATES  TO  ONE  ANOTHER    99 

to  prohibit  any  breach  of  it.  In  so  far  as  the  existing 
League  of  Nations  is  recognized  as  exercising  a  coercive 
power  over  the  states  which  compose  it,  it  represents 
an  arrangement  of  this  sort.  But  in  proportion  as  any 
such  union  becomes  actually  binding  and  permanent, 
it  must  in  reality  bring  the  associated  nations  into  a 
single  state.  It  might,  therefore,  be  doubted  whether 
even  in  this  event  the  term  "international  law"  would 
not  still  be  a  misnomer;  for  "nation"  in  this  sense 
being  a  political  and  not  an  ethnological  term,  the 
union  of  the  "nations"  \mder  a  single  law  would  con- 
stitute them  a  single  state. 

As  against  the  point  of  view  adopted  in  such  criti- 
cisms of  the  propriety  of  the  term  "international  law," 
various  arguments  may  be  adduced.^  In  the  first  place, 
the  objection  urged  by  many  writers^  who  adopt  a  re- 
stricted connotation  of  the  term  "law"  may  also  be 
applied  here.  We  have  seen  that  law  in  its  strict  sense 
is  not  applicable  to  a  state  of  society  in  which  Ufe  is 
regulated  to  a  large  extent  by  custom,  and  to  which  the 
idea  of  deliberate  enactment  is  altogether  alien.  Nor 
is  the  term  in  its  strict  sense  applicable  to  a  community 
in  which  imperfect  political  organization  or  chronic 
anarchy  renders  the  general  obedience  to  regulative 
control  spasmodic  and  uncertain.  Many  writers  have 
therefore  preferred  to  expand  the  sense  of  the  term 
"law"  in  order  to  make  its  use  extend  to  societies  of 
this  character,  and  recognize  the  existence  of  "law  in 
the  making,"  as  well  as  of  law.  Viewed  in  this  light, 
international  law  may  be  considered  as  truly  law,  al- 
though as  yet  only  in  an  inchoative  stage;  it  becomes 
analogous,  as  Sir  Frederick  Pollock  expresses  it,  "to 

«  See  Jellinek,  Recht  dea  Modemen  Staates,  pp.  302-07,  337-41. 
»  See  chapter  iv,  above. 


100  THE  NATURE  OF  THE  STATE 

those  customs  and  observances  in  an  imperfectly  or- 
ganized society,  which  have  not  yet  fully  acquired  the 
character  of  law,  but  are  on  the  way  to  become  law." 

5.  International  arbitration.  Arbitration,  or  the 
settlement  of  differences  between  independent  states  in 
accordance  with  the  adjudication  of  a  third  party,  has, 
even  in  the  form  of  a  voluntary  recourse  to  such  a  de- 
cision, only  assumed  any  considerable  proportions  in  the 
last  half-century  and  particularly  since  the  estabUsh- 
ment  of  the  covenant  of  the  League  of  Nations.  It  is, 
of  course,  true  that  there  have  always  been  examples  of 
disputes  settled  by  the  mediation  of  a  third  party.  Dur- 
ing the  mediaeval  and  early  modem  period,  while  the 
theory  of  a  common  superior  still  persisted,  recourse  was 
often  had  to  the  Pope  as  an  arbiter  between  contending 
princes.  But  such  arbitration,  except  in  the  case  of  the 
celebrated  award  by  Pope  Alexander  VI,  dividing  the 
New  World  between  Spain  and  Portugal,  and  in  a  few 
lesser  instances,  was  not  applied  to  questions  of  great 
magnitude.  In  the  seventeenth  and  eighteenth  centuries 
international  arbitration  is  scarcely  found,  but  the  cir- 
cumstances of  the  nineteenth  centmy  especially  favored 
the  development  of  the  principle.  The  increasing  cost- 
liness of  war,  the  dislocation  that  it  occasions  not  only 
to  the  industrial  life  of  the  belligerents,  but  to  that  of 
all  countries  associated  with  them,  the  growing  interde- 
pendence of  general  financial  and  commercial  operations 
throughout  the  civilized  world,  put  a  strong  premimn  on 
any  method  of  settling  quarrels  without  actual  war.  It 
is  true,  as  most  writers  on  the  subject  point  out,  that  as 
yet  arbitration  has  not  been  appUed  to  subjects  of  really 
vital  importance.  But  there  have  already  been  instances 
of  its  use  in  cases  in  which,  though  neither  national  exist- 
ence nor  honor  was  at  stake,  pecujiiary  and  territorial 


RELATION  OF  STATES  TO  ONE  ANOTHER     101 

claims  of  great  magnitude  were  involved.  As  between 
the  United  States  and  Great  Britain  arbitration  has  re- 
peatedly been  employed,  especially  for  the  rectification 
of  boundary  Unes,  as  in  1827  in  regard  to  the  northeast 
boundary/  and  in  1846  for  the  boimdaries  on  the  Pacific 
coast.  Still  more  celebrated  is  the  successful  arbitration 
of  the  question  of  the  American  claim  for  damages  on 
account  of  the  devastations  of  the  Alabama  and  other 
Southern  cruisers,  a  matter  which,  by  the  Treaty  of 
Washington  (1871),  was  referred  to  a  special  tribunal, 
and  ended  in  the  award  of  a  compensation  of  $15,500,000 
to  the  United  States.  Arbitration  was  also  successfully 
employed  in  1889  by  the  United  States,  Great  Britain, 
and  Germany  in  reference  to  Samoa.  There  were  in  all 
in  the  nineteenth  century  over  a  hundred  important 
cases  of  arbitration  effected  by  special  tribunals  or 
specially  appointed  umpires. 

A  further  stage  of  development  was  seen  in  the  at- 
tempt to  constitute  a  permanent  tribunal  for  the  settling 
of  international  disputes  and  in  the  conclusion  of  trea- 
ties to  effect  a  standing  method  of  recourse  to  such  a 
tribunal.  After  various  proposals  from  important  quar- 
ters in  the  closing  years  of  the  nineteenth  century,  a  suc- 
cessful plan  was  put  into  operation  by  a  convention 
signed  at  The  Hague  by  the  Great  Powers  in  connection 
with  the  Peace  Conference  of  1899.  Under  this  agree- 
ment a  permanent  court  of  arbitration  was  estabhshed. 
It  consisted  of  a  panel  of  distinguished  jurists,  of  whom 
four  were  nominated  by  each  signatory  power,  and  from 
the  total  number  of  whom  international  disputants 
might  select  two  each  to  act  as  arbitrators,  the  persons 
chosen  themselves  adding  an  umpire.  The  procedure  to 

>  The  award  made  in  this  case  by  the  King  of  the  Netherlands  was 
rejected  by  the  United  States. 


102  THE  NATURE  OF  THE  STATE 

be  adopted  by  the  tribunal  thus  created  was  also  pre- 
scribed. Recourse  to  the  tribunal  at  The  Hague,  al- 
though not  obligatory  upon  the  signatory  powers,  never- 
theless offered  standing  facilities  for  peaceful  settlement 
very  difficult  to  bring  into  being  during  the  strained 
relations  occasioned  by  acute  international  controversy. 

The  Hague  Conference  of  1899  made  no  definite  ar- 
rangement for  a  second  gathering.  A  second  conference 
was  proposed  by  President  Roosevelt  during  the  Russo- 
Japanese  War.  At  the  desire  of  the  Czar  the  meeting  was 
delayed  till  the  conclusion  of  the  war  and  met,  as  the 
Second  Hague  Conference  in  1907.  This  conference  un- 
dertook the  further  discussion  and  revision  of  the  system 
of  arbitration  adopted  in  1899,  but  was  chiefly  concerned 
with  the  consideration  of  the  rules  of  war.  The  great 
divergences  of  view  which  had  been  apparent  in  re- 
gard to  the  maritime  code  of  war  and  neutrality  and 
which  were  obviously  being  accentuated  by  the  rapidly 
changing  conditions  of  offense  and  defense,  led  Great 
Britain  to  invite  the  chief  European  powers  and  the 
United  States  and  Japan  to  a  special  conference  in  this 
regard.  This  assembly  met  at  London  in  1909  and 
drew  up  the  Declaration  of  London,  the  provisions  of 
which  the  House  of  Lords  refused  to  ratify. 

The  work  thus  accomplished  by  general  conferences 
was  further  supplemented  by  special  treaties  among  the 
powers  which  thereby  pledged  themselves  to  adopt  a 
settlement  by  arbitration  where  possible.  According  to 
the  International  Peace  Bureau  of  Berne,  one  hundred 
and  thirty-three  treaties  of  arbitration  were  concluded 
during  the  ten  years  following  the  first  Peace  Conference. 
In  nearly  all  cases  the  agreement  to  submit  to  arbitra- 
tion matters  of  controversy  that  might  arise  between 
two  states  was  made  with  certain  reservations.  Ques- 


RELATION  OF  STATES  TO  ONE  ANOTHER    103 

tions  which  involved  the  independence,  national  honor, 
or  vital  interests  of  a  state  were  excluded  from  the  opera- 
tion of  arbitration.  Thus  it  was  made  a  condition  of  the 
Anglo-French  Treaty  of  1904,  and  of  those  identical  with 
it,  that  "neither  the  vital  interests  nor  the  independence 
nor  honor  of  the  two  contracting  states,  nor  the  interests 
of  any  state  other  than  the  two  contracting  states  shall 
be  involved."  Such  a  proviso,  imavoidable  though  it 
was  in  the  existing  state  of  public  opinion,  seriously 
impaired  the  theoretical  completeness  of  the  arrange- 
ment, since  each  state  must  remain  the  judge  of  its 
own  vital  interests  and  might  therefore  at  any  time 
refuse  to  admit  the  applicability  of  arbitration.  A  few 
treaties  made  by  lesser  states,  as  notably  those  con- 
cluded by  Denmark  with  Italy,  Holland,  and  Portugal 
resi)ectively,  provided  for  the  submission  of  controver- 
sies of  every  character  to  a  court  of  arbitration. 

Within  the  limits  indicated  above,  treaties  of  five 
years'  duration  for  references  of  disputes  to  the  Hague 
tribunal  were  made,  in  identical  terms,  by  Great  Brit- 
ain with  France,  Italy,  Spain,  and  Germany.  These 
treaties  provided  that  "differences  of  a  justiciable  order 
or  relative  to  the  iaterpretation  of  existing  treaties  be- 
tween the  two  contracting  parties  which  may  arise  and 
which  it  may  not  have  been  possible  to  settle  by  diplo- 
macy, shall  be  submitted  to  the  permanent  court  estab- 
lished by  the  convention  of  July  29, 1899,  at  The  Hague." 
In  the  same  way  the  United  States  had  by  1910  con- 
cluded limited  arbitration  treaties  with  twenty-four 
powers,  among  which  were  Great  Britain,  Japan,  Ger- 
many, France,  Austria,  and  Italy.  The  treaty  made 
between  the  United  States  and  Great  Britain  in  1908, 
and  duly  ratified,  pledged  those  two  states  to  refer  to 
the  Hague  Court  any  controversies  which  could  not  be 


104  THE  NATURE  OF  THE  STATE 

settled  by  means  of  diplomacy,  provided  that  the  issues 
"  did  not  affect  the  vital  interests,  the  independence,  or 
the  honor  of  the  two  contracting  states." 

In  1911  the  attempt  was  made  to  carry  still  further 
the  appUcation  of  arbitration  in  disputes  between  Great 
Britain  and  the  United  States.  A  treaty  was  signed 
(August  3,  1911)  by  the  plenipotentiaries  of  the  two 
countries  which  was  to  submit  practically  each  and 
every  dispute  to  a  court  of  arbitration.  The  treaty  also 
proposed  to  institute  a  joint  high  commission  of  in- 
quiry for  the  "impartial  and  conscientious  investiga- 
tion," though  not  of  course  for  the  decision,  of  interna- 
tional controversies.  By  the  terms  of  the  agreement  the 
treaty  was  to  remain  in  force  until  terminated  by  twen- 
ty-four months'  notice  given  by  either  contracting  state. 
The  attempt  to  obtain  the  ratification  of  the  United 
States  Senate  for  this  treaty,  and  for  a  similar  treaty 
negotiated  with  France,  raised  the  question  of  the  con- 
stitutional rights  and  obhgations  of  the  Senate  and  the 
ratification  of  the  treaties  in  their  original  form  proved 
impossible. 

During  the  opening  years  of  the  twentieth  century  the 
progress  of  international  arbitration  was  thus  of  a  char- 
acter to  offer  to  many  observers  the  most  delusive  hopes 
for  the  prospects  of  permanent  peace.  These  hopes 
were  fm-ther  intensified  by  the  increasing  interrelation 
and  mutual  dependence  of  the  general  commerce  and 
finance  of  the  world.  It  began  to  be  argued  that  war 
was  becoming  obsolete  and  that  the  close  connection 
between  nation  and  nation  of  business  investment  and 
finance  indicated  that  war,  even  for  a  victorious  nation, 
would  spell  financial  disaster.  The  appearance  of  a  book 
by  R.  N.  A.  Lane  (Norman  Angell)  entitled  The  Great 
JUusion,  in  which  these  arguments  were  advanced  with 


RELATION  OF  STATES  TO  ONE  ANOTHER    105 

singular  lucidity,  attracted  world-wide  attention  in  the 
years  just  preceding  the  Great  War.  In  all  these  dis- 
cussions, however,  it  was  taken  for  granted  that  no  bel- 
ligerent nation  would  seek  to  increase  its  wealth  by  pil- 
lage and  enslavement. 

6.  The  League  of  Nations.  Such  was  the  general  posi- 
tion of  the  theory  and  the  facts  of  international  relations 
at  the  outbreak  of  the  Great  War.  In  the  initial  stages  of 
the  conflict  it  was  very  generally  argued  that  the  close  of 
the  war  would  mean  the  termination  of  war  itself.  The 
wish  at  least  was  father  to  the  thought.  Unfortunately 
the  world  situation  in  the  years  following  the  war  is  such 
as  to  give  little  if  any  hope  of  such  a  consummation. 
This  general  desire,  however,  led  to  the  formation  at  the 
close  of  the  war  of  a  League  of  Nations.  It  came  into  be- 
ing by  virtue  of  a  covenant  accepted  by  the  representa- 
tives of  the  allied  and  associated  powers  in  plenary 
conference  at  Paris  on  April  28,  1919.  The  covenant 
forms  Part  I  of  the  draft  treaties  of  peace  presented 
to  the  delegates  of  the  German  Empire  at  Versailles  on 
May  7,  1919,  and  to  those  of  Austria  at  Saint-Germain 
on  June  2,  1919.  It  is  provided  that  these  treaties  shall 
come  into  force  as  soon  as  they  have  been  ratified  by 
Germany  and  Austria  respectively  and  by  three  of  the 
principal  allied  and  associated  powers.  The  alUed  and 
associated  powers  comprise  the  United  States,  the  Brit- 
ish Empire,  France,  Italy,  and  Japan.  The  German  del- 
egates signed  on  June  28,  1919.^ 

1  The  citation  here  is  from  Sir  Geoffrey  Butler's  admirable  Handbook 
to  the  League  of  Nations  (1919).  The  following  powers,  subject  to 
necessary  ratifications,  became  original  members  of  the  League  of 
Nations  as  signatories  of  the  treaty  of  peace:  United  States  of  America, 
Belgium,  Bolivia,  Brazil,  British  Empire,  with  Canada,  Australia, 
South  Africa,  New  Zealand,  and  India,  China,  Cuba,  Czecho-Slovakiai 
Ecuador,  France,  Greece,  Guatemala,  Haiti,  Hedjaz,  Honduras, 
Italy,  Japan,  Liberia,  Nicaragua,  Panama,  Peru,  Poland,  Portugal, 


106  THE  NATURE  OF  THE  STATE 

The  organs  of  the  League  consist  of  an  assembly 
made  up  of  representatives  of  all  the  members:  a  coun- 
cil consisting  of  representatives  of  the  principal  allied 
and  associated  powers  (as  above),  together  with  repre- 
sentatives of  four  other  members  selected  by  the  as- 
sembly from  time  to  time:  a  secretariat  comprising  a 
secretary-general  appointed  by  the  council  with  the 
approval  of  a  majority  of  the  assembly  and  assisted  by 
such  staff  as  may  be  required;  and  finally  a  permanent 
court  of  justice  competent  "to  hear  and  determine  any 
dispute  of  an  international  character  which  the  parties 
thereto  submit  to  it,"  and  to  "give  an  advisory  opinion 
upon  any  dispute  or  question  referred  to  it  by  the  coun- 
cil or  by  the  assembly."  The  council  itself  is  empowered 
to  regulate  the  constitution  of  the  permanent  court. 
The  seat  of  the  League  is  established  at  Geneva. 

The  covenant  of  the  League  contains  provisions  * 
directed  toward  the  prevention  of  war,  the  limitation  of 
armaments,  the  mutual  guarantee  of  territory  and  in- 
dependence. In  view  of  the  exceptional  importance  of 
the  subject  it  is  well  to  quote  the  principal  clauses  of 
these  provisions  from  the  text  of  the  covenant  itself: 

Except  where  otherwise  expressly  provided  in  this  Covenant, 

Roumania,  Serb-Croat-Slovene  State,  Siam,  and  Uruguay.  The  fol- 
lowing others  became  original  members  as  having  been  invited  to 
accede  to  the  covenant,  —  Argentine  Republic,  Chili,  Colombia, 
Denmark,  Netherlands,  Norway,  Paraguay,  Persia,  Salvador,  Spain, 
Sweden,  Switzerland,  and  Venezuela.  The  covenant  provides  further 
other  states  (e.g.  states  corresponding  to  the  former  Central  Powers 
or  parts  of  them)  may  be  made  members  of  the  League  with  the  con- 
sent of  two  thirds  of  the  League  Assembly  provided  that  such  a  state 
"  shall  give  effective  guarantees  of  its  sincere  intentions  to  observe  its 
international  obligations,  and  shall  accept  such  regulations  as  may  be 
prescribed  by  the  League  in  regard  to  its  military,  naval,  and  air 
forces  and  annaments."  Any  member  may  after  two  years'  notice 
withdraw  from  the  League. 

*  Aq  excellent  summary  ia  found  in  Butler,  op.  cU.,  chap.  vii. 


RELATION  OF  STATES  TO  ONE  ANOTHER    107 

or  by  the  terms  of  the  present  Treaty,  decisions  at  any  meet- 
ing of  the  Assembly  or  of  the  Council  shall  require  the  agree- 
ment of  all  the  Members  of  the  League  represented  at  the 
meeting.  (Art.  v.) 

The  Members  of  the  League  recognize  that  the  maintenance 
of  peace  requires  the  reduction  of  national  armaments  to  the 
lowest  point  consistent  with  national  safety  and  the  enforce- 
ment  by  common  action  of  international  obligations. 

The  Council .  .  .  shall  formulate  plans  for  such  reduo- 
tion  for  the  consideration  and  action  of  the  several  Govern- 
ments. .  .  . 

The  Members  of  the  League  agree  that  the  manufacture 
by  private  enterprise  of  munitions  and  implements  of  war  is 
open  to  grave  objections.  The  Council  shall  advise  how  the 
evil  effects  attendant  upon  such  manufacture  can  be  pre- 
vented. (Art.  VIII.) 

The  Members  of  the  League  undertake  to  respect  and  pre- 
serve as  against  external  aggression  the  territorial  integrity 
and  existing  political  independence  of  all  Members  of  the 
League.  In  case  of  any  such  aggression  or  in  case  of  any 
threat  or  danger  of  such  aggression  the  Council  shall  advise 
upon  the  means  by  which  this  obligation  shall  be  fulfilled. 
(Art.  X.) 

Any  war  or  threat  of  war,  whether  inunediately  affecting 
any  of  the  Members  of  the  League  or  not,  is  hereby  declared 
a  matter  of  concern  to  the  whole  League,  and  the  League 
shall  take  any  action  that  may  be  deemed  wise  and  effectual 
to  safeguard  the  peace  of  nations.  (Art.  xi.) 

The  Members  of  the  League  agree  that  if  there  should  arise 
between  them  any  dispute  likely  to  lead  to  a  rupture,  they  will 
submit  the  matter  either  to  arbitration  or  to  inquiry  by  the 
Council,  and  they  agree  in  no  case  to  resort  to  war  until 
three  months  after  the  award  by  the  arbitrators  or  the  report 
by  the  Council.  (Art.  xii.) 

The  Members  of  the  League  agree  that  whenever  any  dis- 
pute shall  arise  between  them  which  they  recognize  to  be 
suitable  for  submission  to  arbitration  and  which  cannot  be 
satisfactorily  settled  by  diplomacy,  they  will  submit  the  whole 
subject-matter  to  arbitration.  (Art.  xiii.) 

If  there  shall  arise  between  Members  of  the  League  any 
dispute  likely  to  lead  to  a  rupture,  which  is  not  submitted 


108  THE  NATURE  OF  THE  STATE 

to  arbitration  as  above,  the  Members  of  the  League  agree 
that  they  will  submit  the  matter  to  the  Council. .  .  . 

The  Council  shall  endeavor  to  effect  a  settlement  of  the 
dispute.  .  .  . 

If  the  dispute  is  not  thus  settled,  the  Council,  either  unan- 
imously or  by  a  majority  vote,  shall  make  and  publish  a 
report  containing  a  statement  of  the  facts  of  the  dispute  and 
the  reconunendations  which  are  deemed  just  and  proper  in 
regard  thereto.  .  .  . 

If  a  report  by  the  Council  is  unanimously  agreed  to  by 
the  members  thereof  other  than  the  Representatives  of  one 
or  more  of  the  parties  to  the  dispute,  the  Members  of  the 
League  agree  that  they  will  not  go  to  war  with  any  party 
to  the  dispute  which  complies  with  the  recommendations 
of  the  report.  (Art.  xv.) 

Should  any  Member  of  the  League  resort  to  war  in  disregard 
of  its  covenants  under  Articles  XII,  XIII,  or  XV,  it  shall  ipso 
facto  be  deemed  to  have  committed  an  act  of  war  against  all 
other  Members  of  the  League,  which  hereby  undertake  imme- 
diately to  subject  it  to  the  severance  of  all  trade  or  financial 
relations,  the  prohibition  of  all  intercourse  between  their  na- 
tionals and  the  nationals  of  the  covenant-breaking  State, 
and  the  prevention  of  all  financial,  conunercial,  or  personal 
intercourse  between  the  nationals  of  the  covenant-breaking 
State  and  the  nationals  of  any  other  State,  whether  a  Member 
of  the  League  or  not. 

It  shall  be  the  duty  of  the  Council  in  such  case  to  recom- 
mend to  the  several  Governments  concerned  what  effective 
military,  naval,  or  air  force  the  Members  of  the  League 
shall  severally  contribute  to  the  armed  forces  to  be  used  to 
protect  the  covenants  of  the  League.  (Art.  xvi.) 

In  the  event  of  a  dispute  between  a  Member  of  the  League 
and  a  State  which  is  not  a  Member  of  the  League,  or  be- 
tween States  not  Members  of  the  League,  the  State  or  States 
not  Members  of  the  League  shall  be  invited  to  accept  the  obli- 
gations of  membership  in  the  League  for  the  purposes  of  such 
dispute.  .  .  . 

If  a  State  so  invited  shall  refuse  to  accept  the  obligations  of 
membership  in  the  League  for  the  purposes  of  such  disputes 
and  shall  resort  to  war  against  a  Member  of  the  League,  the 
provisions  of  Article  xvi  shall  be  applicable  as  against  the 
State  taking  such  action.  (Art.  xvu.) 


RELATION  OF  STATES  TO  ONE  ANOTHER     109 

Nothing  in  this  Covenant  shall  be  deemed  to  affect  the  va- 
lidity of  international  engagements  such  as  treaties  of  arbitra- 
tion or  regional  understandings  like  the  Monroe  Doctrine 
for  securing  the  maintenance  of  peace.  (Art.  xxi.) 

To  those  colonies  and  territories  which  as  a  consequence 
of  the  lat€  war  have  ceased  to  be  under  the  sovereignty  of 
the  States  which  formerly  governed  them  and  which  are  in- 
habited by  peoples  not  yet  able  to  stand  by  themselves  under 
the  strenuous  conditions  of  the  modem  world,  there  should 
be  applied  the  principle  that  the  well-being  and  development 
of  such  peoples  form  a  sacred  trust  of  civilization  and  that 
securities  for  the  performance  of  this  trust  should  be  embodied 
in  this  Covenant. 

The  best  method  of  giving  practical  effect  to  this  prin- 
ciple is  that  the  tutelage  of  such  peoples  should  be  entrusted 
to  advanced  nations  who  by  reason  of  their  resources,  their 
experience,  or  their  geographical  position,  can  best  imdertake 
this  responsibility,  and  who  are  willing  to  accept  it,  and 
that  this  tutelage  should  be  exercised  by  them  as  Manda- 
tories on  behalf  of  the  League.  (Art.  xxii.) 

Amendments  to  this  Covenant  will  take  effect  when  rati- 
fied by  the  Members  of  the  League  whose  Representatives 
compose  the  Coimcil  and  by  a  majority  of  the  Members  of 
the  League  whose  Representatives  compose  the  Assembly. 
(Art.  XXVI.) 

The  situation  created  by  the  experience  of  the  war 
and  the  establishment  of  the  League  of  Nations  is  thus 
very  far  removed  from  the  roseate  hopes  that  had  been 
so  widely  entertained  for  the  prospects  of  permanent 
peace.  It  is  quite  clear  now  that  in  and  of  itself  the 
interdependence  of  markets,  exchanges,  and  finance 
does  not  end  war;  that  even  nations  that  had  previously 
been  classed  as  civilized  may  resort  to  methods  of  bar- 
barity, pillage,  and  enslavement;  and  that  under  modem 
conditions  of  warfare,  both  in  its  technical  aspect  and 
in  its  economic  basis,  the  status  of  neutrality  is  diffi- 
cult to  determine,  to  maintain,  and  to  respect. 


110  THE  NATURE  OF  THE  STATE 

Moreover,  the  covenant  of  the  League  is  far  removed 
in  its  terms  from  the  all-powerful  coercive  authority, 
the  "parliament  of  man  and  federation  of  the  world," 
which  was  the  dream  of  the  ideaUst.  Action  by  a 
unanimous  vote  upon  any  matter  of  prime  importance 
is  almost  impossible  in  so  numerous  a  body  as  the  as- 
sembly of  the  League  and  extremely  difficult  in  a  body 
80  complex  as  the  council.  Pious  wishes  for  the  reduc- 
tion of  armaments  belong  with  other  counsels  of  per- 
fection. The  League  proposes  to  take  any  action  that 
"may  be  deemed  wise"  to  meet  any  threat  of  war, 
and  to  "endeavor  to  effect  a  settlement"  of  interna- 
tional disputes  and  to  boycott  any  member  which  breaks 
its  covenants.  But  it  must  be  remembered  that  these 
things  will  be  done  only  if  there  is  a  unanimous  agree- 
ment among  the  allied  and  associated  powers  who  may 
be  permanently  on  the  council  and  the  four  other  powers 
from  time  to  time  adjoined  to  them.  Even  allowing  for 
the  fact  that  the  unanimity  need  not  include  the  parties 
to  the  dispute,^  it  is  obviously  more  than  possible  that 
the  council,  in  a  moment  of  emergency,  such  as  that 
at  the  closeof  July,  1914,  will  fail  to  come  to  a  conclusion. 
The  League  offers,  in  short,  an  admirable  mechanism 
whereby  nations  which  wish  to  settle  their  disputes  with 
one  another  without  war  may  be  assisted  to  do  so;  but 
it  offers,  and  it  can  offer,  nothing  more  than  a  partial 
and  unrehable  protection  against  the  ambitions  and  the 
rapacity  of  pirate  nations.  Against  aggression  of  this 
kind  there  remains  no  other  national  safeguard  than 
adequate  physical  defense  and  the  inspiration  of  na- 
tional patriotism  which  gives  it  strength.  Under  these 
circumstances,  therefore,  it  may  well  seem  to  many  that 
the  experience  of  the  Great  War  tells  strongly  in  favor 

>  See  the  Covenant,  art  xv. 


RELATION  OF  STATES  TO  ONE  ANOTHER    111 

of  the  national  state  as  the  principal  hope  of  humanity 
for  generations  to  come.  The  wider  prospect  of  cosmo- 
politan union  must  still  remain  little  more  than  a  vision, 
an  inspiration,  doubtless,  toward  international  friend- 
ship and  good-will,  but  worse  than  useless  as  a  reliance 
against  danger. 

READINGS  SUGGESTED 

Lawrence,  T.  J.,  Principles  of  International  Law  (1898),  part 

I,  chaps,  i-v. 
Machiavelli,  N.,  The  Prince  (1513). 
Butler,  Sir  G.,  Handbook  to  the  League  of  Nations  (1919). 

FURTHER  AUTHORITIES 

Walker,  T.  A.,  History  of  the  Law  of  Nations,  vol.  i  (1899). 
Halleck,  H.  W.,  International  Law  (1861). 
Maine,  Sir  H.,  International  Law  (4th  edition,  1879). 
Bryce,  J.,  Holy  Roman  Empire  (8th  edition,  1883). 
Dunning,  W.  A.,  History  of  Political  Theories  Ancient  and  Me- 

diceval  (1902). 
Grotius,  De  Jure  Belli  ac  Pads  (1625). 
Ritchie,  D.  G.,  Natural  Rights  (1895). 
Austin,  J.,  Lectures  on  Jurisprudence  (4th  edition,  1879). 
Jellinek,  G.,  Das  Recht  des  Modemen  Staates  (1900). 
Dyer,  L.,  Machiavelli  and  the  Modem  State  (1904). 
Woolsey,  T.,  America's  Foreign  Policy  (1898). 
Phillipson^  C.,  International  Law  and  the  Great  War  (1915). 


CHAPTER  VII 
THE  FORM  OF  THE  STATE 

1.  The  classification  of  states  according  to  their  form;  Aristotle's 
divisions  —  2.  Later  classifications;  Montesquieu,  Rousseau,  Blunt- 
schli,  etc.  —  3.  Practical  classification  of  existing  states  —  4.  The 
constitution ;  written  and  unwritten  constitutions  —  5.  Origin  of 
written  constitutions  —  6.  The  distinction  between  states  with 
written  and  those  with  unwritten  constitutions  an  illusory  basis 
of  division  —  7.  Scope  of  the  constitution  —  8.  Amendment. 

1.  The  classification  of  states  according  to  their 
form;  Aristotle's  divisions.  Although  all  states  must 
possess  the  essential  requisites  of  territory,  population, 
unity,  and  sovereign  organization,  they  nevertheless 
differ  widely  in  respect  to  the  extent  of  their  territory, 
the  number  of  their  population,  and  the  peculiar  na- 
ture of  their  organization.  It  is  natural,  therefore,  to 
attempt  to  group  them  under  some  system  of  orderly 
classification;  indeed,  from  the  time  of  Aristotle  on- 
wards, almost  all  writers  on  poUtical  science  have  in- 
dicated some  such  classification.  To  subdivide  states 
according  to  the  extent  of  their  territory,  for  instance, 
into  classes  each  containing  so  many  thousand  square 
miles,  would  obviously  be  of  very  httle  significance;  to 
divide  them  according  to  population  would  be  equally 
easy  and  valueless.  The  evident  basis  of  classificatioi 
is  that  of  the  organization  of  the  state;  in  other  words, 
states  are  divided  according  to  the  structure  of  their 
governments.  Some  writers  have  held  that  we  ought 
not  to  speak  of  a  classification  of  states,  since  all  are 
identical  in  their  essential  attributes.  They  prefer  to 
classify  instead  the  different  "forms  of  government" 
seen  in  the  state.   The  objection  does  not  seem  well 


THE  FORM  OF  THE  STATE  113 

taken.  The  differences  in  structure  of  government  con- 
stitute the  basis  of  classification,  but  we  may  on  that 
basis  either  speak  of  the  various  "forms  of  government  " 
or  "forms  of  the  state."  ^ 

The  starting-point  for  all  later  discussion  is  found  in 
the  celebrated  classification  given  by  Aristotle  in  his 
Politics.  He  divides  the  forms  of  government  accord- 
ing to  the  number  of  persons  in  whom  the  controlling 
power  is  vested.  Where  the  power  is  vested  in  a  single 
person  the  government  is  a  monarchy.  Power  vested 
in  the  hands  of  a  few  constitutes  an  aristocracy.  Where 
the  general  body  of  the  citizens  rule,  we  have  a  polity. 
Thus  far  the  classification  had  already  been  indicated 
by  Herodotus,  but  Aristotle  proceeds  further  in  dis- 
tinguishing between  what  he  calls  the  "normal"  and 
the  "perverted"  forms  of  the  state.  The  normal  states 
are  those  which  aim  at  the  good  of  the  community 
as  a  whole;  the  perverted  forms  are  those  which  exist 
for  the  benefit  of  the  ruler  or  the  ruling  class.  The  terms 
mentioned  above  are  reserved  for  the  first  class;  thus  a 
monarchy  is  a  government  by  a  king  for  the  good  of  the 
whole  community,  while  an  aristocracy  or  a  polity  is 
a  government  by  the  enlightened  few  or  by  the  citizens 
at  large  for  the  same  end.  Of  the  perverted  forms  a 
tyranny  means  the  government  by  a  tyrant  for  his  own 
ends,  an  oligarchy  the  government  of  the  minority  in 
their  own  interest,  while  a  democracy  signifies  the  self- 
ish government  of  the  "mob."  It  is  to  be  observed  that 
in  translating  Aristotle's  terminology  literally,  the  word 
"democracy"  is  shifted  out  of  its  modem  meaning  and 
becomes  a  term  of  opprobrium ;  some  writers  have  there- 

'  "  It  need  not  be  said  that  there  can  be  no  such  thing  as  a  classifi- 
cation  of  states.  In  essence  they  are  all  alike,  —  each  and  all  being 
distinguished  by  the  same  sovereign  attributes."  (W.  W.  Willoughby, 
The  Nature  of  tfte  State,  chap,  xiii.) 


114  THE  NATURE  OF  THE  STATE 

fore  preferred  to  avoid  a  literal  translation  and  to  use 
"democracy"  for  the  normal  or  beneficent  form,  and  to 
substitute  "ochlocracy"  to  mean  mob-rule. 

The  classification  thus  offered  was  intended  by  Aris- 
totle to  bear  a  peculiar  significance  in  that  it  typified 
not  only  the  divisions  of  governments,  but  also  indicated 
a  series  of  forms,  representing  what  might  be  considered 
the  natural  evolution  of  government.  An  original  king- 
ship was  presumed  to  change  into  an  aristocracy  and 
then  through  successive  stages  of  oligarchy  and  tyranny 
into  democracy.  "The  first  governments,"  says  Aris- 
totle,^ "were  kingships,  probably  for  this  reason,  because 
of  old  when  cities  were  small,  men  of  eminent  virtue  were 
few.  They  were  made  kings  because  they  were  bene- 
factors, and  benefits  can  only  be  bestowed  by  good  men. 
But  when  many  persons  equal  in  merit  arose,  no  longer 
enduring  the  preeminence  of  one,  they  desired  to  have 
a  commonwealth  and  set  up  a  constitution.  The  ruling 
class  soon  deteriorated  and  enriched  themselves  out  of 
the  public  treasury;  riches  became  the  path  to  honor, 
and  so  oligarchies  naturally  grew  up.  These  passed  into 
tjrrannies,  and  tyrannies  into  democracies:  for  love  of 
gain  in  the  ruling  classes  was  always  tending  to  dimin- 
ish their  number,  and  so  to  strengthen  the  masses,  who 
in  the  end  set  upon  their  masters  and  established  de- 
mocracies." 

Some  writers  in  their  analysis  of  the  Aristotelian  classi- 
fication have  put  forward  as  the  "natural"  order  of 
succession — monarchy,  tyranny,  aristocracy,  oUgarchy, 
polity,  and  lastly  democracy.  The  last  in  its  turn  may 
again  change  into  monarchy  and  hence  form  a  recurring 
cycle.'    The  process  may  be  explained  in  detail  thus: 

•  Aristotle,  Politics,  u,  chap.  xv. 

*  Thi*  ifl  the  interpretation  given  to  Aristotle's  theory  by  Wood- 


THE  FORM  OF  THE  STATE  115 

Starting,  for  instance,  at  a  given  point  in  the  cycle, 
we  find  a  government  in  existence  as  a  hereditary  mon- 
archy. With  the  degeneration  of  the  character  and  aims 
of  the  successive  monarchs,  it  passes  into  a  tyranny, 
and  is  no  longer  directed  toward  the  public  good.  The 
united  efforts  of  the  more  powerful  magnates  of  the  com- 
munity overthrow  the  monarch  and  set  up  an  aristo- 
cratic government.  This  again  degenerates,  loses  the 
public  spirit  which  at  first  inspired  it,  and  lapses  into 
an  oligarchy.  Against  this  regime  the  citizens  as  a 
whole  break  into  successful  revolt  and  establish  a 
"polity,"  or,  in  modem  terminology,  a  "democracy." 
Pushed  to  an  extreme  the  democracy  is  converted  mto 
the  oppression  of  the  rich  by  the  masses,  and  thus  be- 
comes an  ochlocracy  (Aristotle's  democracy).  The  in- 
tolerable confusion  that  results  is  brought  to  an  end  by 
the  emergence  of  an  all-powerful  warrior-statesman  who 
estabhshes  himself  as  a  king.  Thus  the  cycle  has  run 
its  course  and  begins  again. 

The  theory  of  political  change  laid  down  by  Aris- 
totle appears,  to  a  large  degree,  corroborated  by  the 
history  of  the  Greek  city-states  in  the  centuries  pre- 
ceding the  Peloponnesian  War;  ^  indeed  it  was  as  an 
interpretation  of  their  recurrent  experience  that  Aris- 
totle, who  was  essentially  an  inductive  and  practical 
writer,  offered  this  view  of  political  permutations.  Even 
in  recent  history  examples  are  found  of  a  more  or  less 
complete  poUtical  progression  of  this  sort.  The  French 
despotic  monarchy  of  the  eighteenth  century  was  over- 
row  Wilson  (The  State,  chap,  xm,  §§  1395-1397).  It  is  interesting  in 
this  connection  to  consider  Plato's  discussion  of  the  same  subject,  and 
Aristotle's  criticism  of  Plato's  view.  See  Plato,  Republic,  vni,  {  645; 
and  Aristotle,  Politics,  v,  chap.  xii. 

'  An  able  analysis  of  the  origin,  development,  and  decay  of  the 
Greek  city-state  is  given  by  Ward  Fowler,  The  CityStaU, 


116  THE  NATURE  OF  THE  STATE 

thrown  by  the  revolutionary  movement  (1789-92), 
which  in  its  inception  was  largely  under  the  guidance 
of  the  enlightened  minority,  whose  initial  ascendancy 
might  therefore  be  looked  upon  as  the  overthrow  of 
despotism  by  aristocracy.^  In  the  second  phase  of  the 
revolution  the  aristocracy,  as  represented  by  the  prop- 
erty-holding voters  of  the  constitution  of  1791  (an  oli- 
garchy, in  the  minds  of  the  Jacobin  extremists),  were 
overthrown,  and  the  republic  established,  resting  theo- 
retically on  universal  suffrage  and  complete  democracy. 
The  turbulent  anarchy  into  which  this  democratic 
regime  degenerated  (1793-99)  was  brought  to  an  end 
by  the  emergence  of  a  military  monarch  in  the  person 
of  Napoleon  Bonaparte.  The  Unks  of  the  progression 
are  not  precisely  complete,  but  yet  offer  an  analogy  in 
some  degree  corresponding  to  the  AristoteUan  cycle. 
The  last-mentioned  phase,  the  suppression  of  anarchic 
disorder  by  the  establishment  of  a  military  autocracy, 
is  one  that  has  shown  itself  specially  liable  to  recur. 
Yet  when  all  is  said,  it  cannot  be  argued  that  the  Aris- 
toteUan cycle  is  to  be  looked  upon  as  a  necessary  or 
even  as  a  normal  course  of  political  change.  Even  Aris- 
totle, who  regarded  it  as  normal,  shows  by  his  discussion  ' 
of  the  means  of  preventing  revolutions  that  he  did  not 
consider  it  as  inevitable.  Least  of  all  does  it  hold  true 
of  the  condition  of  the  modem  pohtical  state.  Nor 
is  the  classification  of  states  into  monarchies,  aristoc- 
racies, and  democracies  to  be  looked  upon  as  a  satisfac- 
tory and  sufficient  division  as  appUed  to  the  modem 
world.  In  the  first  place,  the  terms  monarchy  and  democ- 
racy open  the  way  at  once  to  great  confusion.    If  a  de- 

»  The  fact  that  the  constitution  of  1791  conferred  the  suffrage  only 
on  the  property-holders  lends  color  to  this  view.  See  Aulard,  Hiatoir* 
Politique  de  la  Rivolulion  Fransaiae. 

*  PolUiu,  bk.  V. 


THE  FOBM  OF  THE  STATE  117 

mocracy  means,  as  Aristotle's  "polity"  does,  a  system 
in  which  the  political  power  lies  in  the  mass  of  the 
people,  Great  Britain  is  to  be  classed  as  such,  and  falls 
into  the  same  category  as  the  United  States,  notwith- 
standing the  obvious  formal  difference  between  these 
two  governments.  If,  on  the  other  hand,  having  regard 
to  the  existence  of  a  titular  sovereign.  Great  Britain  is 
merely  described  as  a  monarchy,  the  classification,  while 
correct  in  a  purely  formal  sense,  is  evidently  unsatisfac- 
tory. It  is  thus  seen  that  the  Aristotelian  division  of- 
fers no  adequate  treatment  of  constitutional  or  limited 
monarchies,  which  are  nevertheless  as  prominent  as  any 
existing  form  of  government.  The  classification  is  in- 
adequate, too,  in  other  ways.  It  fails  to  take  account 
of  the  difference  between  a  federal  and  a  non-federal  or 
unitary  government  —  a  distinction  which,  as  we  shall 
presently  see,  is  of  the  greatest  importance  in  connection 
with  modem  states.  Nor  does  it  make  any  distinction 
between  governments  according  to  the  differences  of 
the  constitutional  relation  of  legislature  and  executive. 
This  also,  as  we  shall  see,  is  of  the  greatest  importance. 
2.  Later  classifications;  Montesquieu,  Rousseau, 
Blimtschli,  etc.  Imperfect,  however,  as  the  Aristotelian 
formula  is,  it  was  nevertheless  accepted  as  one  of  the 
cardinal  tenets  of  poUtical  science.  Not  until  quite  mod- 
em times  do  we  find  it  subject  to  serious  modification 
or  expansion.  Montesquieu,  whose  Esprit  des  Lois 
(1748)  will  fall  under  consideration  in  the  succeeding 
chapter,  proposed  a  division  into  republican,  monar- 
chical, and  despotic  governments.  Republican  gov- 
ernment was  that  "in  which  the  people  as  a  body  or 
even  a  part  of  the  people  has  the  sovereign  power;  mo- 
narchical, that  in  which  a  single  person  governs,  but  only 
by  fixed  and  established  laws;  whereas  in  despotic  govern- 


118  THE  NATURE  OF  THE  STATE 

ment  a  single  person,  without  any  law  or  rule,  conducts 
everything  according  to  his  will  and  caprice."  ^  Rous- 
seau offers  a  division  of  governments  into  monarchies, 
aristocracies,  and  democracies,  subdividing  aristocracies 
into  natural,  elective,  and  hereditary.  He  admits  also  the 
existence  of  mixed  forms  of  government,  as  in  the  an- 
archical kingdom  of  Poland.  Many  other  writers  of  the 
eighteenth  and  earlier  nineteenth  centuries  offer  varia- 
tions of  the  classification  of  Aristotle,  all  of  which,  how- 
ever, are  open  to  the  same  objection  of  inadequacy  as 
appUed  to  the  complex  organization  of  modem  states. 
Bluntschli  presents  a  unique  addition  to  the  list  of  gov- 
ernments in  the  shape  of  theocracy,  a  normal  form  to 
which  there  corresponds  a  perverted  form,  "idoloc- 
racy."  The  former  name  is  apphed  to  states  "in  which 
no  human  authority  has  been  recognized,  in  which  the 
supreme  power  has  been  attributed  either  to  God,  or 
to  a  God,  or  to  some  other  superhuman  being,  or  to  an 
Idea.  The  men  who  exercise  rule  are  not  regarded  as  its 
possessors,  but  as  the  servants  and  vice-gerents  of  an 
imseen  ruler.  Its  perversion  may  be  called  Idolocracy." 
Such  a  classification  seems  quite  fallacious.  For  even 
granting  the  vaUdity  of  this  fourth  class,  it  lies  cross- 
wise of  the  other  three,  and  is  not  exclusive  of  them. 
We  might  have  a  theocracy  that  had  the  form  of  a  mon- 
archy, an  aristocracy,  or  a  democracy.  Other  writers 
have  attempted  more  elaborate  methods  of  division, 
which  are  intended  to  account  for  all  the  various  his- 
torical forms  of  the  state.  Of  this  nature  is  the  classifi- 
cation of  Von  Mohl  (a  German  publicist  of  the  earlier 
nineteenth  century) ;  he  distinguishes  patriarchal,  theo- 
cratic, despotic,  classic,  feudal,  and  constitutional  states. 
Very  little  examination  is  needed  to  see  that  such  classes 

>  Esprit  dea  Lois,  bk.  ii,  chap.  i. 


THE  FORM  OF  THE  STATE  119 

overlap  each  other  in  all  directions;  indeed  attempts  of 
this  sort  to  effect  a  division  that  is  at  once  logical  and 
chronological,  run  the  danger  of  drifting  into  mere  de- 
scription. 

More  modem  writers  ^  midertake  a  division  of  states 
which  shall  take  account  not  merely  of  the  general  loca- 
tion of  supreme  legal  power,  but  also  of  the  salient  fea- 
tures of  the  organization  and  structure  of  the  govern- 
ment. Indeed,  while  accepting  Aristotle's  division  as 
true  as  far  as  it  extends,  it  seems  necessary  in  classifying 
the  states  of  the  modern  world  to  take  account  of  cer- 
tain especial  features  of  organization  the  existence  of 
which  introduces  a  fundamental  difference  between 
forms  of  government.  Chief  amongst  these  is  the  dis- 
tinction between  unitary  and  federal  governments.  In 
a  unitary  government  the  organs  of  local  authority  (pro- 
vincial and  county  bodies,  etc.)  exist  by  virtue  of  an 
express  creation,  or  by  tacit  recognition  from  the  cen- 
tral government.  The  latter  has  power,  legally,  to  ter- 
minate their  existence  or  alter  their  form.  The  govern- 
ments of  France,  Great  Britain,  and  Italy  are  unitary. 
The  governments  of  the  United  States  and  Canada,  on 
the  other  hand,  are  federal.  Here  both  the  central  and 
local  authorities  derive  their  power  from  an  antecedent 
source,  and  neither  is  legally  competent  to  destroy  the 
other.  A  further  distinction  is  found  in  the  difference 
between  what  is  called  parliamentary,  responsible,  or 
cabinet  government,  and  the  form  known  as  non-respon- 
sible or  non-parliamentary.  In  the  former  the  executive 
is  virtually  appointed  by,  and  holds  office  during  the 

*  See  Gareis,  AUgemeines  Staalsrecht;  and  Jellinek,  AUgemeine 
Staalslehre,  chap.  xx.  An  excellent  discussion  of  the  form  of  the  state 
is  found  in  Professor  J.  W.  Garner's  Introduction  to  Political  Science, 
chaps.  V  and  vi.  Professor  Gamer  prefers  to  distinguish  the  '*  Form 
of  State"  from  "the  Forms  of  Govermnent." 


120  THE  NATURE  OF  THE  STATE 

pleasure  of,  the  legislative  body.  This  is  the  case  in  Eng- 
land and  in  France.  In  the  latter  the  executive  is  not 
appointed  by  the  legislature,  and  cannot  be  dismissed 
by  it.  Of  this  character  is  the  government  of  the  United 
States,  of  the  separate  States  of  the  Union,  Cuba,  etc. 

3.  Practical  classification  of  existing  states.  In  at- 
tempting a  somewhat  elaborate  practical  classification 
of  states,  it  seems  advisable  to  make  no  attempt  to  in- 
clude all  the  historic  forms  which  have  appeared  in  the 
evolution  of  the  state  (city-states,  feudal  monarchies, 
etc.),  but  to  confine  ourselves  to  actually  existing  types. 
In  dealing  with  historic  and  imperfect  forms  of  the  state, 
no  more  accm^ate  classification  than  the  original  cate- 
gory of  Aristotle  can  be  applied  without  degenerating 
into  mere  description.  It  is  well,  therefore,  to  take  the 
primary  classification  as  of  general  validity,  and  to  sup- 
plement it  with  a  more  exact  category  of  modem  states. 
In  the  light  of  what  has  been  said,  the  division  shown 
in  the  table  on  the  following  page  may  be  suggested. 

There  is  first  of  all  to  be  noted  the  formal  distinction 
between  a  republic  and  a  monarchy.  In  the  modern 
world  this  is  for  the  most  part  a  distinction  of  external 
form  rather  than  of  essential  character.  If  the  true 
meaning  of  "repubUc"  is  taken  to  be  a  government  in 
which  the  majority  of  the  people  rule  through  orderly 
constitutional  forms,  then  the  British  government  is  as 
much  a  republic  as  is  France  or  the  United  States.  In 
the  same  way  the  name  and  external  form  of  a  republic 
may  clothe  what  is  in  reaUty  a  military  autocracy.  Till 
recently  it  was  possible  to  begin  a  classification  of  states 
by  indicating  the  distinction  between  "despotic  govern- 
ments" and  those  which  were  —  either  as  limited  mon- 
archies or  as  repubUcs  —  of  a  democratic  form.  In  this 
case  the  "despotic  governments'*  included  those,  such 


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122  THE  NATURE  OF  THE  STATE 

as  Russia  or  Persia  or  Turkey  at  the  opening  of  the 
present  century,  in  which  in  the  form  of  law  the  will  of 
the  monarch  is  supreme.  But  in  the  world  of  to-day, 
with  such  dubious  exceptions  as  Abyssinia  or  Afghan- 
istan, it  is  no  longer  possible  to  find  states  of  this  nom- 
inal character,  whatever  may  be  the  actual  conditions 
of  rule  and  obedience  which  obtain  in  them.  It  is  proper, 
therefore,  to  begin  with  the  formal  and  titular  distinc- 
tion between  monarchy  and  repubhc.  The  division  of 
both  constitutional  monarchies  and  repubUcs  into  uni- 
tary and  federal  forms,  and  into  responsible  and  non-re- 
sponsible governments,  rests  upon  distinctions  already 
made. 

4.  The  constitution;  written  and  imwritten  consti- 
tutions. The  form  of  any  particular  state  is  called  its 
constitution.  In  America  it  is  natural  to  think  of  the 
word  "constitution"  as  indicating  a  written  document. 
But  in  the  wider  sense  of  the  term  it  refers  to  the  fixed 
fundamental  law  of  any  state,  whether  expressed  in  a 
written  constitution  or  otherwise.  The  following  defini- 
tion is  offered  by  Professor  Woolsey:  ^  "The  collection 
of  principles  according  to  which  the  powers  of  the  gov- 
ernment, the  rights  of  the  governed,  and  the  relations 
between  the  two  are  adjusted  is  called  a  constitution." 
Compare  the  definition  of  the  distinguished  English 
jurist,  Mr.  E.  Dicey:  "All  rules  which  directly  or  indi- 
rectly affect  the  distribution  or  the  exercise  of  the 
sovereign  power  in  the  state."  Of  these  principles  or 
rules,  some  may  exist  in  written  form  in  a  constitutional 
document,  but  others  may  be  of  equally  binding  force; 
though  resting  for  their  sanction  only  on  long-standing 
custom.  This  is  seen  particularly  in  looking  at  the 
constitution  of  England.   Some  of  the  most  important 

>  Political  Science,  vol.  I. 


THE  FORM  OF  THE  STATE  123 

parts  of  it  are  matters,  not  of  statutory  enactment,  but 
of  customary  usage;  and  this  customary  usage  is  to  be 
regarded  sometimes  as  having  the  aspect  of  law  enforce- 
able by  the  courts,  sometimes  merely  as  an  understand- 
ing or  convention,  whose  observance  is  only  guaranteed 
by  the  force  of  tradition  and  of  public  opinion.  The 
cabinet  system,  for  example,  by  which  the  ministers  of 
the  executive  are  selected  with  the  approval  of  the 
majority  of  the  House  of  Commons  from  among  the 
members  of  the  two  houses  of  Parliament  representing 
a  particular  political  party  or  group  of  parties,  is  the 
central  feature  in  the  practical  operation  of  the  British 
government;  it  is  purely  a  matter  of  convention,  not  of 
law. 

-  Hungary  is  another  country  which  offered,  prior  to 
its  disruption  by  the  Great  War,  an  example  of  what  is 
commonly  called  an  unwritten  constitution.  The  rela- 
tions of  Hungary  to  Austria,  together  with  which  it 
formed  the  dual  monarchy  of  Austria-Hungary,  were 
indeed  based  upon  a  fundamental  statute  (December, 
1867)  passed  in  hke  terms  by  the  parliaments  of  the 
two  countries,  and  bearing  some  analogy  to  a  written 
constitution.  But  there  was  no  single  constitutional  doc- 
ument regulating,  or  professing  to  regulate,  the  internal 
government  of  the  Kingdom  of  Hungary.  As  in  the 
case  of  England,  to  whose  constitutional  evolution  that 
of  Hungary  offered  an  interesting  parallel,  the  consti- 
tution rested  partly  on  immemorial  custom,  partly  on  a 
series  of  decrees  and  statutes,^  partly  on  conventional 

»  Of  these  the  principal  are:  Golden  Bull  of  Andreas  II  (1222); 
the  Pacification  of  Vienna  (1606) ;  Pragmatic  Sanction  of  Charles  III 
(1723) ;  Constitutional  Laws  of  1791,  1844,  1848,  and  1867.  From  the 
original  Contract  of  Blood  (no  longer  extant,  but  dating  from  the  first 
conquest  of  the  country  and  securing  the  rights  of  the  nobles)  till  the 
present  century  about  fifty  constitutional  statutes  may  be  enumerated. 
See  Dareste,  F.  R.,  l,ea  Constitutions  Modemea  (2d  edition,  1891),  vol.  i. 


124  THE  NATURE  OF  THE  STATE 

usages.  The  parliament  of  Hungary  and  the  county 
assemblies  had  existed  for  many  centuries,  and  their 
existence  was  not  based  on  a  fundamental  written  law. 
Of  the  decrees  referred  to,  the  Golden  Bull  of  Andreas  II 
(a.d.  1222)  —  restricting  the  power  of  the  king  in  favor 
of  the  privileges  of  the  barons,  and  caUing  for  annual 
parliaments  —  suggests  the  Magna  Carta  of  King  John. 
It  had  been  supplemented  by  numerous  other  laws,  the 
most  important  provisions  of  which  were  definitely 
codified  in  statutes  of  1848  and  1867.  Any  of  the  pro- 
visions of  these  could  legally  be  abolished  by  ordinary 
statutes.  It  would  seem,  then,  that  the  word  "  constitu- 
tion," if  it  is  to  include  the  organization  of  such  coun- 
tries as  England  and  Hungary,  must  be  used  in  a  wider 
acceptation  than  its  usual  American  signification.  To 
the  examples  of  Great  Britain  and  Hungary  there  might, 
of  course,  be  added  the  former  despotic  states,  such  as 
Russia  and  Turkey,  whose  government  from  the  nature 
of  the  case  was  not  based  upon  a  written  constitution. 
Theoretically  one  could  conceive  of  a  despotic  monarchy 
resting  on  a  written  constitution;  one  might  imagine  the 
social  contract,  as  enunciated  by  Hobbes,  operating  in 
the  form  of  a  written  constitution,  under  which  all  the 
subjects  surrendered  their  power  to  a  despotic  king. 
But  inasmuch  as,  in  this  instance,  the  power  of  the 
king  would  extend  to  the  alteration  or  abrogation  of 
the  constitution  itseK,  the  latter  would  be  entirely 
nugatory  and  the  king's  real  tenure  of  power  would 
rest  in  reality  on  the  continuance  of  the  custom  of 
submission. 

5.  Origin  of  written  constitutions.  But  among  the 
organized  states  of  the  civilized  world  the  number  of 
those  which  have  no  written  constitution  professing  to 
regulate  their  internal  structure  is  only  a  very  small 


THE  FORM  OF  THE  STATE  125 

minority.  Within  the  last  century  and  a  half  most  of 
the  great  states  have  adopted  written  constitutions. 
The  American  colonies,  in  converting  themselves  into 
states,  led  the  way.  Written  constitutions  were  adopted 
in  the  year  1776  by  New  Hampshire,  Virginia,  South 
Carolina,  New  Jersey,  Delaware,  Pennsylvania,  Mary- 
land, and  North  Carohna;  in  the  following  year  by 
Georgia  and  New  York;  and  by  Massachusetts  in  1780. 
Connecticut  and  Rhode  Island  converted  their  royal 
charters  into  constitutions  by  putting  the  name  of  the 
people  in  the  place  of  that  of  the  king.  France,  at 
the  commencement  of  the  Revolution,  framed  and 
adopted  (1791)  a  written  constitution  which,  although 
soon  set  aside  in  favor  of  others  equally  ephemeral 
(1793,  1795,  1799),  established  an  historic  precedent. 
Each  of  the  successive  French  governments  of  the 
nineteenth  century  has  adopted  a  written  constitution 
—  the  Bourbon  government  of  the  Restoration  prefer- 
ring, however,  to  avoid  the  word  "constitution"  and  to 
substitute  for  it  the  term  "charter,"  which  seemed  to 
have  less  flavor  of  popular  sovereignty.  The  present 
government  in  France  —  the  Third  Republic  —  though 
it  has  no  single  document  called  a  constitution,  has, 
nevertheless,  a  code  of  "constitutional  laws,"  with  a 
special  method  of  revision.  In  the  Napoleonic  era  a 
number  of  written  constitutions  were  issued  under 
French  influence  to  the  tributary  Italian  states.  Dur- 
ing the  same  time  written  constitutions  were  declared 
in  Spain  both  by  the  Bonapartists,  recognizing  King 
Joseph  (1808),  and  by  the  partisans  of  the  Bourbon 
Ferdinand  VII  (1812).  Neither  of  these  proved  per- 
manent; but  Spain  is  at  present  under  a  written  con- 
stitution presented  by  the  government  to  a  convention, 
which  ratified  it  in  1876.  During  the  European  rising 


126  THE  NATURE  OF  THE  STATE 

against  Napoleon  (1813,  1814)  written  constitutions 
were  promised  by  Prussia  and  by  several  of  the  states 
of  Germany;  after  the  war  they  were  actually  granted 
by  Bavaria  (1818)  and  by  Wurttemberg  (1819).  The 
great  revolution  of  1848  precipitated  a  shower  of  writ- 
ten constitutions  all  over  central  Europe.  Though 
nearly  all  of  thern  were  canceled  in  the  ensuing  mo- 
narchical reaction,  that  of  Sardinia  (the  "Fundamental 
Statute"  of  1848)  has  remained  in  revised  form  as  the 
constitution  of  the  present  Kingdom  of  Italy.  The  King 
of  Prussia  issued  in  1850  a  constitution  prepared  by 
the  crown  and  accepted  by  a  legislative  body  of  a  reac- 
tionary character,  which  has  since,  in  theory  at  least, 
served  as  the  basis  of  the  Prussian  government.  Aus- 
tria, in  1867  (defeated  in  the  war  with  Prussia  and 
Italy,  and  fearing  a  disintegration  of  her  heterogeneous 
provinces),  adopted  a  set  of  fundamental  laws  closely 
analogous  to  a  written  constitution.  At  the  close  of  the 
Great  War  a  new  constitution  for  Germany,  covering 
a  union  of  fifteen  states,  was  completed  and  announced 
by  the  Berlin  government  on  January  15,  1919.  Apart 
from  Great  Britain,  written  constitutions  may  be  said 
to  have  become  the  general  rule  in  Europe.  The  same  is 
true  of  the  republics  of  Central  and  South  America, 
all  of  which  have  written  constitutions,  serving  at  any 
rate  as  the  nominal  basis  of  their  government. 

The  precedent  having  been  once  successfully  set  in 
America  in  the  eighteenth  century,  its  extension  has 
been  largely  a  matter  of  imitation  and  adaptation.  It 
is  interesting,  however,  to  observe  the  manner  in  which 
the  institution  of  written  constitutions  came  about  in 
the  United  States,  In  a  certain  sense  the  written  con- 
stitutions of  the  American  States  may  be  looked  upon 
as  evolved  out  of  the  charters  granted  by  the  sover- 


THE  FORM  OF  THE  STATE  127 

eigns  of  England  to  trading  companies,  and  conferring 
upon  them  a  corporate  personality,  and,  in  most  in- 
stances, commercial  privileges  or  monopolies.  These 
charters  themselves  were  closely  analogous  to  the  medi- 
eval charters  of  privileges  given  to  towns,  merchant 
guilds,  or  religious  orders.  Edward  IV,  in  1463,  granted 
a  charter  to  the  merchant  adventurers  trading  with 
Flanders.  Queen  Elizabeth  conferred  a  charter  (1579) 
upon  the  Eastland  Company  trading  in  the  Baltic,  and 
granted  another  in  1599  to  the  East  India  Company, 
Under  James  I  (1609)  a  charter  was  granted  to  the 
"Treasurer  and  Company  of  Adventiu^rs  and  Planters 
of  the  City  of  London  for  the  first  colony^  in  Virginia." 
Most  important  of  all  is  the  charter  issued  by  Charles  I 
(1629)  to  the  "Governor  and  Company  of  Massachu- 
setts Bay."  The  Massachusetts  charter  not  only  incor- 
porates a  "trading  company  with  power  to  implead  or 
to  be  impleaded,"  etc.,  but  also  makes  provision  for  a 
frame  of  government  consisting  of  a  governor,  deputy- 
governor,  and  eighteen  assistants,  and  calls  for  the  hold- 
ing of  a  "greate  and  general  courte"  of  the  company 
four  times  a  year.  The  emigration  of  the  company  as  an 
entirety  to  America  (a  proceeding  not  contemplated  by 
the  government  at  the  granting  of  the  charter)  con- 
verted their  corporation  into  a  political  rather  than  a 
commercial  body.  Though  this  charter  was  canceled 
in  1684,  it  was  replaced  by  another  one  (1691)  which 
conceded  less  independence,  indeed,  to  the  colony,  but 
constituted  a  more  purely  political  instrument.  Similar 
charters  with  privileges  of  government  were  granted  to 
various  other  American  colonies  during  the  period  of 

'  This  la  the  second  Virginia  charter.  The  first  was  granted  in  1606. 
The  words  "first  colony"  are  used  to  distinguish  them  from  the  Plym- 
outh Company.  See  B.  Poore,  Charters  and  ConatitiUions,  vol.  u. 


128  THE  NATURE  OF  THE  STATE 

settlement,  though  many  of  them  were  withdrawn  later. 
At  the  time  of  the  Revolution  colonial  charters  existed 
in  Massachusetts,  Connecticut,  and  Rhode  Island. 

But  although  it  is  necessary  to  recognize  the  impor- 
tant part  played  by  trading  charters  in  the  evolution 
of  written  constitutions,  there  are  other  contributory 
factors  which  must  not  be  left  out  of  sight.  The  insti- 
tution of  compacts  or  joint  agreements  for  self-govern- 
ment among  the  people  themselves  played  an  important 
part.  Of  these  compacts  or  "plantation  covenants," 
the  history  of  the  settlement  of  New  England  in  the 
seventeenth  century  offers  several  examples.  They 
were  occasioned  in  part  by  the  isolation  in  which  the 
colonists  found  themselves,  being  cut  off  from  the  direct 
action  of  the  sovereign  government  to  which  they  ac- 
knowledged allegiance;  they  were  also  inspired  by  the 
ideas  on  religious  organization  and  government  domi- 
nant among  a  large  section  of  the  colonists.  The  latter, 
being  "Independents"  in  matters  of  church  govern- 
ance, had  already  the  custom  of  drawing  up  a  "church 
covenant,"  which,  being  accredited  by  the  members  of 
the  congregation,  became  as  it  were  the  constitution 
of  their  spiritual  government.  The  most  notable  of  the 
colonial  compacts  is  the  Mayflower  Covenant,  men- 
tioned in  a  preceding  chapter.  A  particular  importance 
attaches  to  documents  framed  in  1639,  and  named  the 
"Fundamental  Orders  of  Connecticut,"  which  are  prac- 
tically a  political  constitution  adopted  by  the  towns  of 
Windsor,  Hartford,  and  Wethersfield,  which  thus  com- 
bined to  form  the  government  of  Connecticut.  On  this 
was  based  the  later  royal  charter  of  1662,  which,  as  has 
been  seen  already,  was  transferred  into  a  state  consti- 
tution. During  the  great  rebellion  of  the  seventeenth 
century  in  England,  the  supremacy  of  the  Puritans  pro- 


THE  FORM  OF  THE  STATE  129 

duced  in  1647  the  famous  "Agreement  of  the  People," 
intended  to  be  a  fundamental  written  law  superior  to  the 
power  of  Parliament,  and  to  be  ratified  by  all  the  nation. 
A  httle  later  (1653)  the  regime  of  the  Protectorate  was 
consolidated  in  the  "Instrument  of  Government," 
drawn  up  by  a  council  of  Cromwell's  officers.  This  lat- 
ter was  a  written  constitution.  But  the  restoration  of 
the  monarchy,  theoretically  on  its  old  basis,  broke  up 
the  thread  of  constitutional  development  and  left  it  to 
be  brought  to  a  culmination  by  the  American  colonists 
of  the  next  century. 

6.  The  distinction  between  states  with  written  and 
those  with  unwritten  constitutions  an  illusory  basis  of 
division.  From  what  has  been  said  one  might  reason- 
ably expect  that  the  classification  of  governments  ought 
to  have  included  the  distinction  between  those  that 
have  a  written  constitution  and  those  that  have  an  un- 
written. But  such  a  distinction,  self-evident  as  it  ap- 
pears at  first,  is  in  reality  illusory  and  unsatisfactory. 
In  the  first  place  no  constitution  is  wholly  an  unwritten 
one.  Thus  in  the  case  of  the  United  Kingdom  certain 
parts  of  the  constitution  undoubtedly  consist  of  writ- 
ten documents;  the  Magna  Carta,  the  Bill  of  Rights 
(of  1688),  the  Act  of  Settlement  (1701),  and  the  stat- 
utes of  1832,  1867,  1884,'  and  1885,  regulating  the 
right  to  vote  and  the  representation  of  the  people,  are 
evident  examples.  Nor  does  a  so-called  written  consti- 
tution of  necessity,  or  even  usually,  contain  the  whole 
of  the  fundamental  law  of  the  country  to  which  it 
applies.  Any  constitution  is  soon  found  to  become  sur- 
rounded in  its  operation  with  a  growth  of  precedents 
and  customary  usages  which  presently  obtain  what  is 
practically  a  binding  force,  and  which  become  in  time 
a  part  of  the  constitution  in  the  same  sense.  The  most 


130  THE  NATURE  OF  THE  STATE 

familiar  example  is  seen  in  the  case  of  the  presidential 
office  in  the  United  States,  a  third  term  being  forbidden 
by  precedent,  though  not  repugnant  to  the  written  con- 
stitution itself.  A  good  illustration  of  the  same  thing 
is  seen  in  the  government  of  Italy:  the  "Fundamental 
Statute"  does  not  prescribe  the  necessity  of  a  cabinet 
system,  —  of  ministers  dependent  as  in  England  on  the 
approval  of  a  parliamentary  majority,  —  but  the  prece- 
dent set  by  Victor  Emmanuel  II  has  been  consistently 
followed,  and  now  the  system  ^  is  looked  upon  as  a  part 
of  the  constitution  of  the  Kingdom  of  Italy. 

There  are  further  reasons  of  still  greater  cogency  for 
refusing  to  group  together  the  countries  with  paper 
constitutions  as  forming  a  class.  It  is  commonly  con- 
sidered that  a  written  constitution  stands  as  a  barrier 
against  the  arbitrary  action  of  the  government,  the 
supposition  being  that  since  the  powers  of  the  govern- 
ment are  limited  and  defined  by  the  constitutional  in- 
strument, any  action  of  the  government  outside  of  its 
legal  province  is  void.  Such  is  of  course  the  case  with 
the  Constitution  of  the  United  States.  But  it  is  a  con- 
fusion of  thought  to  suppose  that  this  is  a  necessary 
consequence  of  the  existence  of  a  written  constitution. 
The  existence  of  such  restrictions  on  the  actions  of  the 
government  does  not  follow  from  the  mere  fact  of  there 
being  a  written  constitution,  but  depends  on  the  ques- 
tion whether  or  not  the  provisions  of  the  constitution 
are  alterable  by  the  ordinary  legislative  procedure  of 
the  government.  In  the  United  States  this  is  of  course 
not  possible;  Congress  has  no  power  to  widen  its  own 
jurisdiction.  But  one  can  imagine  a  written  constitution, 

>  For  the  special  features  of  cabinet  government  in  Italy,  see 
Lowell,  A.  L.,  Government  and  Parties  in  Continental  Eutvpe,  vol.  i, 
pp.  151-64. 


THE  FORM  OF  THE  STATE  131 

alterable  by  the  ordinary  method  of  legislative  enact- 
ment. This  is  precisely  the  case  with  the  constitution 
(the  Fundamental  Statute)  of  the  Kingdom  of  Italy; 
there  is  no  part  of  it  that  cannot  legally  be  altered  by 
an  act  of  the  Italian  parliament.  In  spite  of  the  exist- 
ence in  the  one  country  of  a  written  constitution,  and 
its  absence  in  the  other,  the  fundamental  law  of  Italy 
stands  on  the  same  footing  as  that  of  the  United  King- 
dom. It  is  the  force  of  custom  and  pubhc  opinion,  not 
any  legal  check,  that  limits  the  power  of  the  existing 
governmental  body.  It  seems,  therefore,  that  to  class 
Italy  and  the  United  States  together,  and  contrast  the 
two  of  them  with  the  United  ICingdom,  is  to  proceed 
from  a  purely  artificial  point  of  view.  The  division  of 
governments  into  those  that  have  and  those  that  have 
not  a  paper  constitution,  is  quite  misleading. 

Even  apart  from  the  question  of  amendment  or  altep-^ 
ation  of  the  constitution,  a  feature  of  essential  impor-  1 
tance  is  the  validity  or  enforceability  of  the  constitu-   \ 
tional  restrictions.   In  the  case  of  the  United  States,  a    | 
constitutional  hmitation  is  rendered  valid  by  the  pecu-  / 
liar  power  entrusted  to  the  American  courts.  An  act  of  ' 
Congress  which  goes  beyond  the  constitutional  powers 
of  that  body  becomes  inoperative  by  the  decision  of 
the  judiciary,  to  which  the  executive  and  legislative 
branches  of  the  government  defer.    In  this  arrange-    I 
ment,  which  will  be  discussed  more  fully  in  a  later 
chapter,  lies  the  true  guarantee  of  the  American  Con- 
stitution, and  it  is  this  fact,  and  not  the  mere  fact  that 
the  Constitution  is  a  written  one,  which  offers  such 
a  special  safeguard  to  public  liberty.    But  this  is  a 
feature  quite  peculiar  to  the  American  system.    The 
courts  of  Europe  have  no  such  function,  and  the  in- 
dividual has  no  such  guarantee.   The  example  of  the 


132  THE  NATURE  OF  THE  STATE 

Prussian  constitution  is  a  case  in  point.  Between  the 
years  1860  and  1865  a  struggle  was  carried  on  between 
the  King  of  Prussia  (acting  under  the  advice  of  Bis- 
marck and  anxious  to  increase  the  expenditure  on  the 
army)  and  the  House  of  Representatives  elected  under 
the  constitution.  The  constitution  nominally  placed 
the  control  of  finance  in  the  hands  of  the  parhament, 
declaring  that  "taxes  and  dues  for  the  treasury  of  the 
state  can  be  levied  only  as  they  are  set  down  in  the 
budget  or  ordained  by  special  laws"  (art.  100,  consti- 
tution of  1850).  The  king,  finding  it  impossible,  even 
after  recourse  to  a  dissolution,  to  bend  the  House  of 
Representatives  to  his  will,  passed  his  budget  through 
the  House  of  Peers,  and  collected  the  taxes  without  any 
sanction  from  the  lower  house.  This  was,  of  course,  a 
gross  violation  of  the  constitutional  provisions.  Under 
the  American  system  any  individual  citizen  thus  taxed 
could  have  appealed  to  the  courts  for  protection.  But 
the  Prussian  system  does  not  permit  of  any  such  re- 
com^e,  and  although  the  House  of  Representatives  made 
formal  protest,  it  had  no  power  to  stop  the  illegal  pro- 
ceedings of  the  executive.  For  the  reasons  thus  cited  — • 
that  no  constitution  is  wholly  unwritten  or  wholly  writ- 
ten, that  even  in  a  written  one  the  vital  part  of  the 
matter  lies  in  the  process  of  revision,  and  in  the  relation 
of  the  coiuis  to  the  constitution  —  it  is  well  not  to  at- 
tach too  much  importance  to  the  formal  distinction 
between  paper  constitutions  and  constitutions  relying 
on  custom. 

7.  Scope  of  the  constitution.  In  the  next  place  there 
is  to  be  considered  the  scope  and  extent  of  what  is  prop- 
erly to  be  called  the  constitution  of  a  state.  To  harmon- 
ize with  the  definition  given  above,  it  should  contain 
those  principles  according  to  which  the  powers  of  the 


THE  FORM  OF  THE  STATE  133 

government,  the  rights  of  the  governed,  and  the  relation 
between  the  two  are  adjusted.  This  is  not  the  case  with 
all  written  constitutions;  many  of  them  contain  regula 
tions  too  minute  and  of  too  Uttle  importance  to  bt 
classed  as  true  fundamental  law.  This  feature  is  par- 
ticularly noticeable  in  the  present  constitutions  of  the 
States  of  the  Union.  Their  provisions  cover  not  only  the 
fundamental  regulations  of  the  structure  of  the  gov- 
ernment, but  a  great  many  other  things  as  well.  Thus 
the  constitution  of  Alabama  (1901),  and  amendments 
recently  added  to  older  constitutions  are  found  to  con- 
tain provisions  in  regard  to  such  things  as  the  procedure 
of  the  legislature,  the  prohibition  of  special  legislation, 
the  control  of  corporations,  the  regulations  of  railroads, 
the  school  system,  and  many  minor  matters.^  This 
practice  is  typical  of  modern  American  constitutions, 
which  have  tended  constantly  to  become  more  and  more 
lengthy  and  explicit.  The  New  Hampshire  constitution 
of  1776  contains  600  words,  and  the  constitution  of  Mis- 
souri of  1875  about  26,000.  The  official  text  of  the  con- 
stitution of  Colorado,  as  adopted  in  1876  and  amended 
to  November  5,  1918,  covers  eighty-five  pages  of  close 
print.  The  reason  for  this  hes  in  the  alteration  of  public 
opinion  in  reference  to  legislative  bodies  in  general.  A 
hundred  years  ago  the  legislature  was  the  object  of  un- 
limited popular  confidence  and  seemed  to  embody  in 
itself  the  sovereign  power  of  the  people.  The  experience 
of  a  hundred  years  has  shown  the  possibiHty  of  corrup- 
tion in  the  legislature  itself,  and  popular  distrust  has 
led  to  the  attempt  to  safeguard  the  people  from  venality 
and  corruption  on  the  part  of  their  representatives.  The 

'  Compare  the  Constitution  of  Alabama,  1901;  Constitution  of 
Ohio  (amendments  of  1912) ;  Constitution  of  Colorado  (as  amended 
to  Nov.  5,  1918,  esp.  arts,  xv  and  xvi),  eto. 


134  THE  NATURE  OF  THE  STATE 

result  is  that  in  a  certain  sense  many  of  the  provisions 
of  American  constitutions  are  not  of  the  nature  of  fun- 
damental law. 

It  thus  becomes  a  Httle  difficult  to  say  with  accuracy 
just  what  the  words  "constitutional  law"  should  mean. 
If  the  phrase  is  taken  in  a  purely  literal  sense  to  mean 
the  law  contained  in  a  written  constitution,  we  omit  the 
accompanying  customary  usages  and  judicial  interpre- 
tation, and  include  much  that  is  in  the  constitution,  but 
which  is  not  fundamental.  For  example,  the  article  (No. 
61)  of  the  constitution  of  Switzerland  which  declares 
that  the  order  of  Jesuits  is  not  allowed  in  Switzerland 
is  only  constitutional  law  in  the  sense  that  it  is  in  the 
constitution.  In  the  case  of  a  country  with  a  customary 
constitution,  "constitutional  law"  means  all  such  cus- 
toms, common  law,  and  statutes  as  are  of  a  fundamental 
nature.  This  is,  of  course,  a  definition  in  a  circle,  yet 
the  sense  conveyed  is  fairly  obvious.  In  the  United 
Kingdom,  for  example,  the  acts  of  Parliament  of  1832, 
1867,  1884,  1885,  regulating  the  representation  of  the 
people,  are  constitutional  law;  the  Factory  Act  of  1901, 
though  passed  in  the  same  way  by  the  same  authority, 
is  not. 

8.  Amendment.  Something  must  be  said  in  conclu- 
sion in  regard  to  the  alteration  or  amendment  of  a  con- 
stitution. In  such  countries  as  Great  Britain  or  Hun- 
gary, as  it  was,  revision  or  alteration  is  effected  by  the 
ordinary  legislative  process.  The  same  is  true  of  certain 
countries  with  written  constitutions,  such  as  Italy. 
Some  written  constitutions  make  no  explicit  provisions 
for  revision,  as  that  of  Wiirttemberg  (1819)  and  the 
French  "charters"  of  1814,  1815,  and  1830.  In  these 
cases  it  is  to  be  presumed  that  the  ordinary  legislative 
process  includes  the  revisionary  power.    But  in  the 


THE  FORM  OF  THE  STATE  135 

great  mass  of  written  constitutions  a  special  method  of 
revision  is  prescribed  in  all  cases  necessitating  a  more 
deliberate  and  difficult  process  than  the  passage  of  an 
ordinary  law.  The  German  constitution  of  1871  (art. 
78)  allowed  revision  by  ordinary  legislative  process,  with 
the  provision  that  fourteen  votes  in  the  upper  house 
were  sufficient  to  defeat  the  amendment;  inasmuch  as 
Prussia  had  seventeen  votes,  the  article  precluded  any 
revision  without  the  consent  of  the  King  of  Prussia;  in 
other  words,  of  the  German  Emperor.  Various  devices 
are  adopted  in  other  constitutions  —  the  election  of  a 
special  parliament  on  the  issue  of  the  revision  (as  in 
Spain),  the  reiteration  of  the  demand  for  revision  by 
successive  legislatures  (French  constitution  of  1791), 
etc.  The  systems  at  present  in  force  in  France  and 
the  United  States  present  contrasted  extremes  of  sim- 
pUcity  and  difficulty  of  revision.  In  France  a  revision 
can  be  adopted  in  a  joint  session  of  the  Chamber  of 
Deputies  and  the  Senate,  a  provision  originally  framed 
in  the  hope  of  easily  converting  the  republic  into  a 
monarchy.  The  natural  objection  to  such  a  simple  proc- 
ess of  amendment  is  the  absence  of  security  against 
premature  and  ill-considered  change.  In  the  United 
States,  on  the  other  hand,  the  process  is  extremely  com- 
plicated, involving  the  favorable  action  of  a  long  series 
of  legislative  bodies.^  It  may  be  said,  indeed,  that  the 
American  Constitution  had  in  a  sense  never  undergone 
amendment  till  the  adoption  of  Article  XVI  of  the 
amendments.  An  analysis  of  the  circumstances  under 
which  the  first  fifteen  "amendments"  were  made  shows 
that  the  first  ten,  which  constitute  the  "Bill  of  Rights," 
or  the  protection  of  individual  liberty  against  the  action 

'  See  ComtUution  o/  the  United  StcUea,  art.  T,  already  quoted  in 
chapter  it. 


136  THE  NATURE  OF  THE  STATE 

of  the  government,  are  really  part  of  the  Constitution 
itself.  They  were  appended  in  accordance  with  an  agree- 
ment that  was  reached  at  the  time  of  the  ratification  of 
the  Constitution  itself  and  designed  to  meet  the  objec- 
tions raised  in  Massachusetts  and  elsewhere  against 
the  possible  sacrifice  of  individual  hberty  under  the 
new  national  government,^  The  Eleventh  and  Twelfth 
Amendments,  in  reference  to  bringing  suit  against  a 
State  and  to  the  method  of  electing  the  President,  are 
merely  in  rectification  of  oversights,  and  contain  no 
real  departure  from  the  intention  of  the  makers  of  the 
Constitution.  The  Thirteenth,  Fourteenth,  and  Fif- 
teenth Amendments,  prohibiting  slavery  and  attempt- 
ing to  give  equal  political  status  to  whites  and  blacks, 
only  received  the  required  ratification  by  three  fourths 
of  the  state  legislatures  as  a  consequence  of  the  Civil 
War  and  the  "reconstruction"  of  the  Southern  govern- 
ments.^ The  system  therefore  was  often  criticized  in  the 
past  as  too  cumbrous  for  practical  use.* 

The  passage  of  the  Sixteenth  and  following  amend- 
ments by  the  exercise  of  the  process  indicated  in  the 
Constitution  shows  that  this  criticism  was  not  sound. 
It  is  still  open  to  question,  however,  whether  the  method 
of  amendment  does  not  err  somewhat  on  the  side  of 
complexity. 

But  the  most  important  of  all  present  methods  of 
constitutional  revision  is  by  a  more  direct  action  of  the 
people  than  any  of  the  plans  mentioned  above.  The 
calling  of  a  representative  convention  elected  expressly 

'  See  Fiske,  Critical  Period  of  American  History. 

*  See  Curtis,  Constitutional  History  of  the  United  States,  vol.  n. 

*  "It  would  seem,"  says  Woodrow  Wilson  in  his  Congressional  Got- 
emment,  "that  no  impulse  short  of  the  impulse  of  self-preservation, 
no  force  less  than  the  force  of  revolution,  can  nowadays  be  expected 
to  move  the  cumbrous  machinery  of  formal  amendment  erected  in 
Article  I." 


THE  FORM  OF  THE  STATE  137 

for  the  purpose  of  making  a  constitution  may  be  looked 
upon  as  the  typical  American  system;  such  a  consti- 
tution is  in  nearly  all  cases  submitted  to  ratification 
by  popular  vote.  Constitutions  promulgated  directly 
by  the  conventions  themselves  (as  for  example  in  South 
Carolina,  1895,  and  in  Delaware,  1897)  are  nowadays 
quite  exceptional.  It  is  especially  interesting  to  com- 
pare with  the  process  of  amending  the  Constitution  of 
the  United  States  the  methods  of  revision  existing  in 
the  federal  governments  of  Switzerland  and  the  Com- 
monwealth of  Australia.  In  Switzerland  (constitution 
of  1874)  a  constitutional  amendment  passes  through 
both  houses  of  the  legislature,  a  simple  majority  being 
sufficient,  and  is  then  submitted  to  the  vote  of  the 
people;  it  must  be  ratified  by  a  majority  not  only  of 
the  votes,  but  also  of  the  different  cantons  that  form 
the  Confederation.  It  is  further  provided  that  a  de- 
mand for  a  revision  of  the  constitution  made  by  either 
branch  of  the  legislature,  or  by  the  petition  of  fifty 
thousand  voters,  must  be  followed  by  a  popular  vote  on 
the  desirabihty  of  undertaking  a  revision.  The  method 
of  amendment  adopted  under  the  federal  constitution 
of  Australia  is  closely  similar.  Proposals  for  amend- 
ment are  made  in  the  legislatm-e,  and  after  passing  both 
houses  by  an  ordinary  majority  are  submitted  to  the 
people.  To  be  adopted  they  must  obtain  a  majority  of 
the  votes  cast  as  a  total  and  be  carried  in  a  majority 
of  the  states. 

READINGS  SUGGESTED 

Aristotle's  Politics  (Jowett's  translation,  1885),  bk.  iii. 
Willoughby,  W.  W.,  The  Naiure  of  the  State  (1896),  chap.  xni. 
Borgeaud,   C,   Adoption  and  Amendment  of  Constitutions 
(translation,  1895),  part  i. 


138  THE  NATURE  OF  THE  STATE 

FURTHER  AUTHORITIES 

Gareis,  AUgemeines  Staatsrecht  (Marquardsen,  Handbuch  de3 

Oefferdlichen  Redds). 
Woolsey,  T.,  Political  Science  (1878),  vol.  i. 
Curtis,  G.  T.,  Constitviional  History  of  the  United  States  (1896). 
Fiske,  J.,  Critical  Period  of  American  History  (1888). 
Bluntschli,  J.  K.,  Theory  of  the  State  (1885). 
Sidgwick,  H.,  Elements  of  Politics  (1897). 
Dunning,  W.  A.,  History  of  Political  Theories  Ancient  and  Med- 

icEval  (1902). 
Plato,  Republic,  bk.  vm. 
Stevens,  C.  E.,  Sources  of  the  Constitution  of  the  United  States 

(1894). 
Schouler,  J.,  Constitutional  Studies  (1897). 
Stimson,  F.  J.,  Federal  and  State  Constitutions  of  the  United 

States  (1908). 


PART  n 

THE  STRUCTURE  OF  THE  GOVERNMENT 


CHAPTER  I 
THE  SEPARATION  OF  POWEBS 

1.  Nature  of  executive,  legislative,  and  judicial  power  —  2.  Theory 
of  the  separation  of  powers  —  3.  Influence  of  this  theory  in  Amer- 
ica and  France  —  4.  Extent  of  its  application  in  existing  govern- 
ments—  6.  Continental  administrative  law  —  6.  General  criticism 
of  the  theory  of  the  separation  of  powers. 

I.  Nature  of  executive,  legislative,  and  judicial 
power.  In  the  first  part  of  the  present  volume  we  have 
been  concerned  with  the  discussion  of  government  as  a 
whole,  and  with  the  relations  of  the  entire  machinery 
of  the  state  to  the  individual.  The  purpose  of  this  and 
the  following  chapters  is  to  analyze  in  detail  the  struc- 
ture of  government.  For  this  a  starting-point  is  foimd 
in  the  division  of  governmental  powers  between  legis- 
lative, executive,  and  judicial  bodies.  Every  govern- 
ment that  occupies  more  than  a  quite  primitive  or 
limited  sphere  finds  itself  called  upon  to  perform  duties 
of  a  varying  nature.  There  is,  for  example,  a  very 
evident  difference  between  the  functions  exercised  by  a 
member  of  a  legislature,  those  of  a  revenue  officer,  and 
those  of  a  judge.  In  the  first  place  the  government  has 
duties  to  perform  that  are  legislative  and  consist  in 
the  making  of  laws;  a  parliament,  a  city  council,  or 
a  constitutional  convention  is  a  legislative  body.  This 
function,  though  of  scant  importance  in  primitive  so- 
ciety (in  which  the  idea  of  deliberate  lawmaking  is 
hardly  known),  is  of  vast  importance  and  a  matter  of 
constant  necessity  under  the  complex  conditions  of 
modern  life.  In  a  certain  sense,  inasmuch  as  the  mak- 


142    THE  STRUCTURE  OF  THE  GOVERNMENT 

I  ing  of  the  law  is  logically  antecedent  to  its  execution 
and  to  decisions  as  to  its  meanings,  the  legislative  func- 
tion is  the  chief  of  the  powers  of  government.  "The 
legislative  power,"  says  Judge  Story  in  his  Commen- 
taries on  the  Constitviion,  "is  the  great  and  overruling 
power  in  every  free  government."  Looked  at  in  a  purely 
theoretical  light,  the  executive  function  of  the  govern- 
ment (the  carrying  out  of  the  law)  appears  in  a  quite 
mechanical  and  secondary  aspect.  In  point  of  fact, 
however,  the  functions  of  the  executive  branch  of  the 
government  are  of  great  importance.  No  matter  how 
explicitly  laws  are  made,  they  must  of  necessity  leave 
a  wide  discretionary  power  in  the  hands  of  those  who 
enforce  them;  in  many  matters  —  most  notably  in 
relations  with  foreign  states  —  the  executive  branch  of 
government  must  act  without  explicit  instructions,  and 
is  no  longer  to  be  regarded  as  merely  the  agent  of  the 
legislative  branch  of  the  government.  The  organized 
physical  force  —  armies,  navies,  police,  etc.  —  is  at  the 
command  of  the  executive  —  is,  in  a  sense,  a  part  of 
the  executive.  It  is  with  the  executive  (in  the  shape 
of  police,  revenue  officers,  postmasters,  etc.)  that  the 
individual  citizen  is  chiefly  in  contact.  Indeed,  in  any 
modem  government  the  executive,  even  apart  from  the 
army  and  navy,  vastly  outnumbers  the  two  other 
branches.  The  executive  civil  service  of  the  United 
States  includes  about  half  a  million  persons,  while  the 
whole  number  of  federal  judges  and  members  of  Con- 
gress was  (in  1920)  less  than  seven  hundred.  The  ju- 
dicial organs  of  a  government,  whose  fimction  it  is  to 
pronounce  as  to  the  application  of  the  law  to  existing 
cases,  though  hke  the  executive  theoretically  inferior 
to  the  legislature,  exercise  in  reality  a  function  of  the 
greatest  consequence  to  the  citizen,  and,  in  the  case  of 


THE  SEPARATION  OF  POWERS  143 

the  United  States,  a  function  of  a  peculiar  constitu- 
tional importance. 

2.  Theory  of  the  separation  of  powers.  At  the  be- 
ginnings of  modern  democratic  government,  and  in 
particular  in  the  poUtical  writings  of  the  eighteenth 
century,  it  was  a  cardinal  doctrine  of  political  science  , 
that  these  three  branches  of  government,  the  legislative,  \ 
the  executive,  and  judicial,  should  be  kept  separate  from  ] 
one  another.  A  different  body  of  persons  was  to  ad- 
minister each  of  these  three  departments  and  neither 
body  was  to  have  a  controlling  power  over  either  of  the 
others.  It  was  thought  that  in  this  way  a  peculiar 
guarantee,  indeed  the  only  adequate  guarantee,  might 
be  given  to  public  liberty.  This  is  what  is  known  as  the 
theory  of  the  separation  of  powers.  It  is  not  meant 
that  this  theory  was  altogether  new  in  the  eighteenth 
century.  We  find  traces  of  it  as  far  back  as  Aristotle; 
and  Polybius,  in  the  sixth  book  of  his  History  of  Rome, 
in  which  he  treats  of  the  Roman  constitution,  describes 
in  detail  and  with  approval  the  balanced  powers  en- 
trusted to  the  senate,  the  consuls,  and  the  tribunes.  It 
was  natural,  however,  that  with  the  decline  of  mo- 
narchical absolutism  and  after  the  great  object-lesson 
of  the  English  Revolution  of  1688,  constructive  theories 
pointing  towards  possibiUties  of  popular  sovereignty 
should  receive  especial  attention.  At  the  hands  of 
Montesquieu,  author  of  the  Spirit  of  Laws  (1748),  the 
theory  met  with  a  definite  and  emphatic  presentation, 
destined  to  give  it  a  lasting  influence  on  subsequent 
political  institutions.  "If  the  legislative  and  executive 
power,"  says  Montesquieu,  "are  united  in  the  same 
person  or  in  the  same  body  of  persons,  there  is  no  hb- 
erty,  because  of  the  danger  that  the  same  monarch  or 
the  same  senate  may  make  tyrannical  laws  and  execute 


144    THE  STRUCTURE  OF  THE  GOVERNMENT 

them  tyrannically.  Nor  again  is  there  any  liberty  if  the 
judicial  power  is  not  separated  from  the  legislative  and 
the  executive.  If  it  were  joined  to  the  legislative  power, 
the  power  of  the  life  and  hberty  of  the  citizens  would  be 
arbitrary;  for  the  judge  would  be  the  lawmaker.  If  it- 
were  joined  to  the  executive  power,  the  judge  would 
have  the  force  of  an  oppressor."  ^  A  similar  judgment 
is  expressed  by  the  great  Enghsh  jurist,  Blackstone,  in 
his  Commentaries  on  the  Laws  of  England  (1765).  "In 
all  tyrannical  governments  the  supreme  majesty,  or  the 
right  both  of  making  and  enforcing  laws,  is  vested  in 
the  same  man  or  one  and  the  same  body  of  men;  and 
when  these  two  powers  are  united  together  there  is  no 
public  liberty."  Both  of  these  authors  are  led  to  the 
statement  of  the  theory  of  distributed  powers  from  their 
analysis  of  the  British  constitution.  At  the  time  at 
which  they  wrote  the  cabinet  system  was  only  in  the 
earlier  stage  of  its  development.  The  junction  of  both 
the  virtual  executive  and  the  legislative  power  in  the 
hands  of  a  cabinet  or  committee  chosen  out  of  the  legis- 
lature was  not  the  evident  fact  that  it  is  to-day.  A 
British  ministry  of  Montesquieu's  time  was  still  not  a 
unit:  it  allowed  of  divergence  of  opinion  among  its 
members;  nor  did  the  latter  all  take  office  or  leave  it 
at  the  same  time.  Montesquieu,  therefore,  somewhat 
excusably  overlooked  what  has  since  become  the  leading, 
fact  of  the  British  constitution,  and  thought  to  see  in  it 
a  balance  of  power  effected  between  the  king  and  the 
two  houses  of  Parliament,  no  one  of  the  three  being 
supreme  over  the  others,  while  the  judiciary  was  to  a 
large  extent  independent  of  all  of  them.  Blackstone, 
viewing  the  constitution  only  as  a  lawyer,  knows  noth- 
ing of  a  cabinet.   The  ministry  as  known  to  the  law 

1  Eapril  dea  Lois,  bk.  xi,  chap.  vi. 


THE  SEPARATION  OF  POWERS  146 

even  at  the  present  day  are  the  appointed  servants  of 
the  crown.  The  fact  of  their  poHtical  unity  and  member- 
ship of  the  legislatm^e  is  only  a  matter  of  custom,  not 
of  law. 

3.  Influence  of  this  theory  in  America  and  France. 
The  doctrine  of  public  Uberty  effected  by  distribution 
of  power  became  thus  almost  an  article  of  faith  with 
pohtical  writers  of  the  eighteenth  century.  The  fact 
was  of  vital  importance  for  the  history  of  the  United 
States.  At  the  time  of  the  establishment  of  the  state 
governments  the  doctrine  was  put  into  practice  by  the 
separation,  not  of  course  complete,  but  yet  far-reaching, 
of  the  different  branches  of  the  government.  The  in- 
dependent election  of  state  governors  and  legislatures, 
the  absence  of  the  power  of  dissolution,  were  embodied 
in  the  state  constitutions,  and  have  remained  as  funda- 
mental parts  of  the  American  system  of  government. 
That  the  adoption  of  this  plan  was  conscious  and  delib- 
erate is  seen  in  the  often  quoted  passage  of  the  Massa- 
chusetts constitution  of  1780  (part  i,  art.  xxx) :  "  In  the 
government  of  this  commonwealth,  the  legislative  de- 
partment shall  never  exercise  the  executive  and  judicial 
powers,  or  either  of  them;  the  judicial  shall  never  exer- 
cise the  legislative  and  executive  powers,  or  either  of 
them;  to  the  end  it  may  be  a  government  of  laws,  and 
not  of  men." 

The  same  theory  exercised  the  greatest  influence  over 
the  Convention  of  1787,  in  which  the  Federal  Constitu- 
tion was  framed.  Its  members  recognized,  indeed,  the 
need  for  a  modification  of  the  rigidity  of  the  doctrine 
of  separation,  but  in  the  main  they  accepted  it  and 
made  it  the  basis  of  the  Constitution  of  the  United 
States.  "  The  accumulation  of  all  powers,"  says  the 
Federalist  (the  set  of  essays  written  in  defense  of  the 


146    THE  STRUCTURE  OF  THE  GOVERNMENT 

Constitution  by  Hamilton,  Madison,  and  Jay),  "legis- 
lative, executive,  and  judicial,  in  the  same  hands, 
whether  of  a  few  or  many,  and  whether  hereditary,  self- 
appointed,  or  elective,  may  be  justly  pronounced  the 
very  definition  of  tyranny." 

The  fact  that  even  the  state  constitutions  of  1776 
and  1777  and  the  Federal  Constitution  of  1787  do  not 
adopt  an  absolutely  complete  separation  of  powers  of 
government,  naturally  suggests  the  question  in  how  far 
such  a  separation  would  be  possible,  and  what  would 
be  implied  by  a  complete  adoption  of  the  principle.  It 
would  mean  a  constitution  constructed  on  such  a  plan 
as  the  following:  A  legislature  elected  directly  by  the 
people,  a  set  of  executive  officers  either  elected  by  the 
people  (independently  of  the  action  of  the  legislature) 
or  appointed  by  some  person  or  body  of  persons  elected 
by  the  people;  judges  similarly  elected  and  independent 
as  to  their  tenure  of  office  and  emolument  of  both  the 
legislature  and  the  executive.  Even  then  it  might  be 
questioned  whether  the  liability  of  executive  officers  to 
be  tried  before  the  judiciary  for  breaches  of  official  duty 
or  violation  of  their  legal  powers,  would  not  be  at 
variance  with  a  logically  complete  separation;  this,  how- 
ever, will  be  considered  later  in  dealing  with  the  ad- 
ministrative law  of  Continental  Europe.  But  granting 
such  a  separate  election  and  independent  tenure  of 
office  on  the  part  of  the  three  departments  of  govern- 
ment, there  would  still  remain  a  sense  in  which  the 
separation  would  not  be  complete,  in  which,  indeed,  it 
can  never  be  complete  without  a  redudio  ad  dbsurdum. 
The  law  enforced  by  the  executive  and  adjudicated  on 
by  the  courts  would  still  be  the  law  made  by  the  legis- 
lature. It  is  to  be  noted  also  that  such  law  might  con- 
ceivably be  extremely  tyrannical  and  unjust.    The 


THE  SEPARATION  OF  POWERS  147 

executive  and  the  judges  would  still  have  to  apply  it, 
and  thus  the  separation  of  power  in  and  of  itself  would 
offer  no  guarantee  of  individual  Uberty. 

The  theory  of  separation  obtained  during  the  revo- 
lutionary era  in  France  an  influence  no  less  marked 
than  in  the  United  States.  The  Constituent  Assembly 
of  1789  adopted  it  as  a  fundamental  principle  in  their 
construction  of  a  new  government.  The  sixteenth  article 
of  the  formal  Declaration  of  Rights  with  which  they 
prefaced  their  constitution,  declares,  "Every  society  in 
which  the  separation  of  powers  is  not  determined  has 
no  constitution."  In  accordance  with  this  general  prin- 
ciple, the  constitution  established  a  legislature  not  dis- 
solvable by  the  king,  forbade  the  ministers  and  other 
executive  officers  to  hold  seats  in  the  legislature,  gave 
to  the  king  no  right  of  initiative,  and  only  a  partial 
veto  power,  and  instituted  judges  elected  by  the  people. 
The  later  constitution  of  1795  modified  the  separation 
by  instituting  a  plural  executive  —  the  Directory  — 
elected  by  the  legislature  itself. 

4.  Extent  of  its  application  in  existing  governments. 
In  the  course  of  the  nineteenth  century  the  theory  of 
separated  powers  has  lost  a  great  deal  of  its  former 
credit.  The  conspicuous  example  of  the  British  con- 
stitution invalidates  it  as  a  universal  proposition.  Here 
the  development  of  the  cabinet  system  since  Montes- 
quieu's time  has  thrown  the  virtual  direction  of  both 
legislative  and  executive  power  into  the  hands  of  the 
same  body  of  men.  Yet  it  would  be  absurd  to  say  that 
pubUc  Uberty  in  the  United  Kingdom  has  thereby  been 
sacrificed.  As  the  British  constitution  now  stands,  the 
group  of  some  twenty  persons  who  compose  the  cabinet 
have  the  conduct  of  the  executive  government.  They 
also  direct  the  course  of  legislation,  since  a  majority  of 


148    THE  STRUCTURE  OF  THE  GOVERNMENT 

the  predominant  part  of  the  legislature  —  the  House  of 
Commons  —  are  prepared  to  support  their  measures. 
Should  they  lose  that  support  they  resign  their  ofl5ce. 
Thus  the  very  contrary  of  the  idea  of  divided  powers 
seems  to  be  the  case.  The  executive  officers  remain  such 
only  so  long  as  they  retain  the  legislative  power.  The 
legal  theory  of  the  Constitution,  on  the  other  hand,  still 
offers  the  spectacle  of  more  or  less  opposing  powers 
mutually  balanced  —  the  king  and  his  ministers  (ap- 
pointed, in  the  theory  of  the  law,  according  to  his 
pleasure,  and  being  merely  his  servants)  conducting  the 
executive  government,  while  the  houses  of  Parliament 
make  the  laws.  The  analysis  of  the  British  government 
given  by  Walter  Bagehot,  the  distinguished  economist 
and  essayist,  in  his  English  Constitution  (1867),  has 
served  to  show  how  completely  the  development  of 
cabinet  government  has  rendered  the  earlier  view  of 
the  British  constitution  inapplicable  to  the  present 
situation.  In  certain  other  respects  the  British  consti- 
tution offers  in  actual  fact  some  features  of  distributed 
powers,  the  most  notable  being  that  of  the  tenure  of 
oflfice  of  the  judges,  who  are  made  virtually  independ- 
ent by  being  appointed  for  life  or  good  conduct. 

Nor  is  there  a  separation  of  powers  observed  in  the 
present  parliamentary  governments  of  France  and  Italy. 
In  France  the  President  is  elected  by  the  legislature. 
His  ministers  are,  in  practice,  though  not  in  law,  the 
representatives  of  a  majority  in  the  Chamber  of  Depu- 
ties. In  the  same  way  the  King  of  Italy  governs  by 
means  of  a  party  ministry.  In  Germany,  in  the  actual 
working  of  the  federal  imperial  constitution,  the  powers 
of  government  were  not  distributed.  The  German  Em- 
peror held  the  executive  power  of  the  federation.  In  his 
capacity  of  King  of  Prussia  he  had  also  a  very  great 


THE  SEPARATION  OF  POWERS  149 

share  of  legislative  control.  In  the  first  place  there  were 
many  measures  ^  —  those  introducing  any  change  of 
existing  regulations  concerning  the  army,  navy,  cus- 
toms, and  excise  —  which  could  not  be  enacted  without 
the  consent  of  his  appointed  delegate  in  the  Bundes-^ 
rath  or  upper  house  of  the  legislature.  Through  the 
same  channel  he  enjoyed  an  initiative  power  for  any 
kind  of  legislation,  the  control  of  seventeen  out  of  fifty- 
eight  votes  in  the  Bundesrath,^  and  a  veto  upon  consti- 
tutional amendments. 

Even  under  the  Constitution  of  the  United  States, 
the  principle  of  distributed  powers  is  only  adopted  in 
the  federal  government  to  a  modified  extent.  The 
executive  is  not  without  a  share  in  legislation,  since  the 
President  has  a  partial  veto  power  on  the  acts  passed 
by  the  Congress,  and  something  resembling  a  power 
of  initiative  by  means  of  presidential  messages.  Nor  is 
the  legislature  without  share  in  the  executive  govern- 
ment, as  is  seen  in  the  ratification  by  the  Senate  of 
treaties  and  appointments.  The  judges  are  the  ap- 
pointees of  the  executive,  and  the  courts  are  empowered 
to  pass  on  the  constitutionality  of  the  acts  of  the  two 
other  branches  of  the  government.  Even  this  quahfied 
separation  existing  under  the  law  of  the  Constitution 
is  still  further  modified  in  the  actual  operation  of  the. 
government.  Here  the  existence  of  the  party  system  is 
an  important  factor.  Though  standing  outside  of  the 
legal  machinery  of  the  government,  it  none  the  less 
acts  as  a  bond  of  union  between  the  legislature  and  the 
heads  of  the  executive  government.  Whenever  the 
executive  and  the  majority  in  the  houses  of  Congress 

>  Federcd  Constitution,  articles  xxxv  and  xxxn. 
*  The  number  of  votes  in  the  Bundesrath  was  increased  to  61  when 
3  votes  were  given  in  1911  to  Alsace-Lorraine. 


150    THE  STRUCTURE  OF  THE  GOVERNMENT 

are  of  the  same  political  party  (as  was  continuously  the 
case,  for  instance,  between  the  years  1895  and  1913), 
they  are  under  the  guidance  of  common  councils,  and 
are  united  in  the  pursuit  of  the  same  ends.  It  is  possible, 
indeed,  to  look  upon  the  singularly  systematic  and 
powerful  growth  of  the  party  system  in  the  United 
States  as  a  sort  of  "  natural "  evolution  consequent  upon 
the  attempt  to  keep  apart  the  powers  of  government;  an 
attempt,  as  it  were,  on  the  part  of  nature  to  rectify  an 
error  in  organic  structure,  a  process  analogous  to  the 
healing  of  a  fractured  limb.^  In  the  state  governments 
the  separation  of  powers  is  more  nearly  complete.  The 
separate  election  by  the  people  of  the  governor  and  other 
executive  officers,  the  legislature,  and  the  judges,  is  the 
prevalent  constitutional  arrangement.  The  partial  veto 
power  given  to  the  governor  in  nearly  all  the  States  of 
the  Union,  2  and  the  governor's  right  of  sending  mes- 
sages to  the  legislature,  are  a  departure  from  the  rigidity 
of  the  doctrine.  In  all  the  States,  too,  the  courts  have 
cognizance  of  the  official  acts  of  the  members  of  the 
government. 

5.  Continental  administrative  law.  In  the  countries 
of  Continental  Europe  an  application  of  the  principle  of 
separation  is  made  quite  contrary  to  American  ideas 
of  government.  The  officers  of  the  government  acting 
in  their  official  capacity  cannot  be  brought  to  account 
before  the  ordinary  courts  of  law;  nor  can  the  courts 

^  See  F.  Goodnow,  Politics  and  Administration. 

•  The  computation  made  by  R.  L.  Ashley  (The  American  Federal 
State,  1911)  in  1911  was  that  in  that  year  the  governor  possessed  a 
veto  power  in  all  of  the  46  States  enumerated,  except  Rhode  Island, 
Ohio,  and  North  Carolina.  In  3  of  the  States  a  three-fifths  vote  was 
necessary  to  overcome  the  veto;  in  29  of  the  States  a  two-thirds  vote 
was  suflBcient;  and  in  11  of  the  States  only  a  plain  majority  was  re- 
quired. Some  StAtes  reckon  majorities  by  percentages  of  members 
elected ;  others,  of  members  present. 


THE  SEPARATION  OF  POWERS  161 

question  the  validity  of  an  act  of  the  legislature.  Such 
a  system  professes  to  rest  on  the  principle  of  the  seps/- 
ration  of  powers,  by  protecting  the  executive  and  ju- 
diciary from  the  control  of  the  third  branch  of  the 
government.  The  protection,  however,  is  only  afforded 
at  the  expense  of  the  individual  citizen,  the  practical 
effect  of  this  fallacious  form  of  separation  being  to 
strengthen  very  much  the  hands  of  the  executive.  The 
peculiar  relation  thus  established  between  the  execu- 
tive and  judicial  branches  of  the  government  will  be 
treated  more  fully  in  a  later  chapter. 

6.  General  criticism  of  the  theory  of  the  separation 
of  powers.  It  remains  to  consider,  in  conclusion,  to  what 
extent  the  theory  of  the  separation  of  powers  is  to  be 
regarded  as  true.  Stated  in  the  form  of  a  imiversal 
principle,  as  by  Montesquieu  and  Blackstone,  in  the 
quotations  above,  it  is  undoubtedly  false.  It  is  not  true 
that  there  cannot  possibly  be  public  liberty  where  ex- 
ecutive and  legislature  are  joined  in  the  same  hands. 
The  example  of  Great  Britain  alone  amply  proves  this. 
Nor  is  it  true  either  that  the  separation  of  the  powers 
of  government  of  necessity  guarantees  the  individual 
against  possible  tyranny,  establishes  in  and  of  itself  a 
government  "of  laws  and  not  of  men."  A  single  gov- 
ernment board  or  body  of  directors  need  not  of  necessity 
act  tyrannically;  nor  does  it  follow  that  an  executive 
officer  and  a  legislative  council  elected  and  acting  sep- 
arately will  of  necessity  act  in  the  public  interest.  But 
though  no  such  universal  formula  can  be  laid  down,  it 
remains  true  that  in  the  actual  conduct  of  pubhc  affairs 
a  certain  degree  of  separation  of  powers  makes  towards 
efficient  government.  The  divergent  requisites  in  the 
composition  of  executive  and  legislative  bodies  will  be 
treated  in  the  next  chapters;  it  is  apparent,  however, 


152    THE  STRUCTURE  OF  THE  GOVERNMENT 

that  absolute  identity  of  the  two  is  not  to  be  recom- 
mended. The  separation  of  the  judiciary  to  the  extent 
at  least  of  independence  in  tenure  of  oJBice  is  admitted 
by  all  to  be  desirable.  The  question  of  the  advisability 
of  estabUshing  an  executive  controllable  by  the  legisla- 
ture (as  in  the  cabinet  system  of  Great  Britain),  or  of 
following  the  system  adopted  in  the  state  governments, 
is  a  disputed  point.  Its  solution  will  depend  upon  the 
particular  circumstances  and  the  historical  antecedents 
of  each  community.  Americans  are  inclined  to  look 
with  favor  on  the  system  of  popular  election  of  state 
oflBcers.  Such  writers  as  A.  Lawrence  Lowell  in  his 
Essays  on  Government  and  John  Fiske,  Civil  Government 
in  America,  have  ably  argued  in  defense  of  the  American 
plan.  The  EngUsh,  on  the  other  hand,  are  incHned  to 
view  the  union  of  powers  in  the  hands  of  the  cabinet  as 
the  most  admirable  feature  of  their  system  of  govern- 
ment. 

READINGS  SUGGESTED 

Montesquieu,  Esprit  des  Lois  (1748),  bk.  xi,  chap.  VI, 
The  Federalist  (1788),  Essays,  nos.  47--51. 
Bagehot,  W.,  English  ConstitiUion,  chap,  n, 

.'FURTHER  AUTHORITIES 

Polybius,  History  of  Rome,  bk.  vi. 
Goodnow,  F.,  Comparative  Administrative  Law  (1897). 
H6Iie,  M.  F.,  Les  Constitutions  de  la  France  (1880). 
Goodnow,  F.,  Politics  and  Administration  (1900). 
LoweU,  A.  L.,  Essays  on  Government  (1889). 
Fiske,  J.,  Civil  Government  in  America  (1891). 


CHAPTER  n 
THE  LEGISLATURE 

1.  The  legislature;  general  requisites,  procedure,  etc.  —  2.  The  bicam- 
eral system;  reasons  for  its  adoption  —  3.  Composition  of  upper 
hotises — 4.  Distribution  of  power  between  the  two  house* — 6. 
Direct  legislation;  the  initiative  and  the  referendum. 

I.  The  legislature;  general  reqtiisites,  procedure, 
etc.  It  has  been  said  in  the  preceding  chapter  that  there 
is  a  necessary  diversity  in  the  composition  of  the  differ- 
ent branches  of  the  government  to  meet  the  distinctive 
requirements  of  each.  The  executive  is  concerned  with 
action  more  than  deUberation;  promptness  and  unity  of 
purpose  are  the  prime  requisites.  For  the  judiciary,  the 
technical  knowledge  of  the  actual  law  to  be  apphed,  and 
a  trained  logical  faculty  to  be  used  in  its  appUcation  are 
above  all  necessary.  The  legislature,  on  the  other  hand, 
demands  an  entirely  different  set  of  qualities.  The  legis- 
lature is,  par  excellence,  a  deliberative  body,  and  for 
deliberation  two  heads  are  better  than  one,  and  two 
hundred  are  better  than  two.  A  legislative  body  must 
consist  of  many  persons,  representing  numerous  inter- 
ests, various  points  of  view,  and  different  sections  of  the 
community.  No  precise  size  can  be  indicated  as  proper 
for  a  legislature;  as  numbers  increase,  the  gain  in  added 
wisdom  is  offset  by  the  increased  cumbrousness.  The 
French  Constituent  Assembly,  called  in  1789,  consisted 
of  nearly  1200  members.  This  was  the  largest  legislative 
body  of  modern  times,  and  was  found  hopelessly  un- 
wieldy. Of  the  popularly  elected  legislatures  of  the 
world,  the  House  of  Representatives  at  Washington  in 
1919  contained  435  members,  the  British  House  of 


154    THE  STRUCTURE  OF  THE  GOVERNMENT 

Commons  707,  the  French  Chamber  of  Deputies  602, 
the  Italian  Deputies  numbered  508,  and  the  Spanish 
Congress  had  417  deputies.  The  number  of  members 
in  the  state  legislatures  of  the  United  States  varies  very 
much.  The  lower  house  of  Massachusetts  had  240 
members  in  1919  while  that  of  Delaware  had  only  35. 

It  is  hardly  possible  to  accomplish  the  work  of  actual 
legislation  among  such  large  bodies  of  men,  without  the 
adoption  of  definite  plans  and  systems  of  procedure. 
Any  large  gathering  which  acts  at  haphazard  and  with- 
out formal  rules  is  liable  to  become  a  mere  Babel  of 
tongues;  its  resolutions,  to  use  Mr.  Bagehot's  phrase, 
get  "wedged  in  the  meeting."  This  was  the  case  with 
the  French  Assembly  of  1789,  already  referred  to,  which 
in  its  first  enthusiasm  was  inclined  to  proceed  "accord- 
ing to  the  promptings  of  the  spirit,"  rather  than  to 
follow  any  formal  plan.  They  rejected  the  suggestion 
that  they  should  adopt  the  standing  orders  of  the  House 
of  Commons.  "They  discuss  nothing  in  their  assem- 
bly," wrote  Gouvemeur  Morris,  at  that  time  in  Paris, 
and  an  interested  observer  of  their  proceedings.  "One 
large  half  of  their  time  is  spent  in  hallooing  and  bawl- 
ing." Universal  experience  has  therefore  shown  the 
need  of  what  is  called  legislative  procedure,  a  definite 
method  of  doing  business  which  the  legislature  adopts 
as  part  of  the  necessary  formaUty  of  the  making  of  a 
law.  Such  rules  have  been  adopted  by  all  the  chief 
legislatures  of  the  world.  They  are,  of  course,  made  by 
the  legislature  itself,  and  can  consequently  be  set  aside 
if  need  be  in  moments  of  stress.  The  objects  aimed  at 
are  the  orderly  and  efficient  dispatch  of  business,  the 
prevention  on  the  one  hand  of  precipitate  and  ill-con- 
sidered action,  and  on  the  other,  of  fruitless  prolixity 
of  debate.  The  rules  thus  adopted  tend  to  be  extremely 


THE  LEGISLATURE  155 

intricate  and  confusing  by  reason  of  the  vast  amount 
of  business  that  tries  to  force  itself  upon  a  modem 
legislature.  Lord  Bryce  in  his  American  Commonwealth 
tells  us  that  an  industrious  member  of  the  House  of 
Representatives  needs  one  whole  session  to  learn  the 
rules  of  procedure. 

A  few  general  features  of  procediu-e  adopted  in  most 
legislative  bodies  may  be  mentioned.  The  most  impor- 
tant is  the  device  of  requiring  a  bill  to  be  voted  on,  not 
once  and  for  all,  but  at  three  separate  "readings,"  or 
intervals  of  time.  This  is  intended  to  prevent  the  legis- 
lature from  acting  on  the  spm*  of  the  moment,  and 
committing  itself  to  a  measure  under  the  influence, 
perhaps,  of  momentary  emotion.  In  the  British  House 
of  Commons,  "the  member  who  desires  to  introduce 
a  measure  gives  notice  < . .  of  his  intention  to  do  so. 
When  the  motion  comes  on  in  its  order,  he  moves  for 
leave  to  introduce  a  bill. . . .  An  order  of  the  House 
is  made  that  the  bill  be  prepared  and  brought  in  by  the 
mover  and  other  members  named  by  him.  The  bill  may 
then  immediately  be  presented,  which  is  done  by  the 
member  appearing  at  the  bar,  whereupon  the  Speaker 
calls  upon  him  by  name,  he  calls  out,  *A  bill,  sir,'  and 
is  desired  by  the  Speaker  to  bring  it  up.  He  brings  it 
to  the  table  and  delivers  it  to  the  clerk  of  the  House, 
by  whom  its  title  is  read  aloud.  The  questions  that  a 
bill  'be  now  read  a  first  time,'  and  that  it  be  printed, 
are  put  without  amendment  or  debate;  an  order  is  then 
made  that  it  be  read  a  second  time  on  a  day  named." 
On  this  day  the  bill  is  again  brought  up,  and  a  vote 
taken  on  the  question  that  the  "bill  be  now  read  a 
second  time";  having  successfully  passed  this  stage  it 
is  referred  to  what  is  called  a  "Committee  of  the  whole 
House";  here  it  is  discussed,  voted  on  clause  by  clause, 


156    THE  STRUCTURE  OF  THE  GOVERNMENT 

and  probably  amended.  At  the  conclusion  of  this  stage 
a  day  is  set  for  the  final  consideration  of  the  bill;  the 
bill  is  presented  in  its  revised  form  to  the  House,  and 
unless  further  amendments  are  now  carried,  it  is  sub- 
mitted to  its  third  and  final  reading.  Even  after  this  the 
bill  may  have  to  be  reconsidered  if  amended  in  the 
upper  house.  ^ 

Another  device  of  legislative  procedure  is  the  dele- 
gation of  the  work  of  the  legislature  to  a  series  of  com- 
mittees. The  aim  of  this  is  to  facihtate  the  dispatch 
of  business,  and  to  enable  the  legislature,  by  dividing 
itself  into  sections,  to  multiply  its  powers  of  work.  The 
system  has  been  most  completely  developed  in  the  House 
of  Representatives.  Here  the  so-called  first  and  second 
readings  are  a  purely  perfunctory  matter,  and  mean  the 
reading  of  the  title  by  the  clerk.  After  this  the  bill  is 
referred  to  the  appropriate  standing  committee.  These 
are  nominated  by  the  Speaker,  and  are  representative 
of  both  the  great  political  parties.  In  the  Sixty-Sixth 
Congress  there  were  some  sixty  standing  committees  of 
the  House  of  Representatives;  the  committees  on  Ways 
and  Means,  on  Appropriations,  on  Banking  and  Cur- 
rency, on  Commerce,  on  Claims,  Manufacturing,  Pen- 
sions, etc.,  are  among  the  most  important.  The  great 
majority  of  bills  never  survive  their  reference  to  a  com- 
mittee. *  The  committee,  though  it  has  no  formal  power 
to  negative  a  bill,  destroys  them  either  by  making  an 
adverse  report  or  by  introducing  another  bill  as  a  sub- 

^  Anson,  Law  and  Cttatom  of  the  Constitution,  part  i,  chap,  vii,  sect, 
n,  5  2. 

*  "In  the  first  session  of  the  Sixty-Fourth  Congress  (Dec,  1915), 
in  a  total  of  two  hundred  and  seventy-eight  days  there  were  26,099 
bills  and  resolutions."  (Everett  Kimball,  National  Government  of  the 
United  States,  1920.)  Professor  Kimball's  book  presents  a  fund  of 
valuable  information  on  the  practical  working  of  American  govern- 
ment. 


THE  LEGISLATURE  157 

stitute  or  by  simple  neglect.  Such  a  system,  accom- 
panied as  it  is  by  stringent  rules  of  debate,  tends,  of 
course,  to  remove  the  actual  conduct  of  business  from 
the  House  itself,  and  to  discourage  independent  action 
on  the  part  of  individual  members.  The  French  Cham- 
ber of  Deputies  adopts  the  pecuUar  system  of  dividing 
its  members  by  lot  into  eleven  sections  or  panels;  out  of 
these  a  special  committee  is  elected  (by  the  members  of 
the  panel)  for  each  bill  that  is  presented.  Such  a  plan 
is  plainly  unsatisfactory,  as  it  does  not  accord  with  the 
system  of  cabinet  government  supposed  to  operate  in 
the  French  legislature.  The  hazard  of  the  lot  may  lead 
to  government  bills  being  handed  over  to  opposition 
committees.  It  is  easier,  however,  to  see  the  faults  in 
legislative  procedure  than  to  suggest  adequate  remedies. 
A  further  point  of  importance  in  the  conduct  of 
legislative  business  is  the  need  of  some  method  of  for- 
cibly bringing  the  debate  to  a  close.  The  procedure  of 
most  assembUes  allows  means  whereby  a  vote  may  be 
taken  on  the  question  of  terminating  the  discussion  and 
voting  on  the  matter  under  consideration.  To  this  gen- 
eral rule  the  Senate  of  the  United  States  was  long  an 
exception;  it  had  been  until  1917  a  part  of  the  tradi- 
tional dignity  of  that  body  not  to  interfere  with  the 
freedom  of  discussion  by  closing  the  debate.  But  the 
obstruction  that  was  offered  by  six  senators  against  a 
bill  to  permit  the  arming  of  merchant  vessels  led  the 
Senate  to  a  rule  whereby  in  extreme  cases  debate  may 
be  brought  to  an  end.^  In  the  House  of  Representatives, 
however,  the  closure  of  the  debate,  the  "  previous  ques- 
tion," as  such  a  motion  is  called,  may  be  moved  by  any 

•  "  Two  days  after  a  written  notice  by  sixteen  senators  closure  may 
be  applied  by  a  two-thirds  vote,  each  senator  being  limited  to  one 
hour's  debate  and  no  amendment  being  entertained  imless  by  unani- 
mous consent." 


158    THE  STRUCTURE  OF  THE  GOVERNMENT 

member,  and  is  carried  if  supported  by  a  majority  of 
those  present.  Until  quite  recently  the  British  House  of 
Commons  had  no  such  rule.  It  happened,  however,  that 
during  Mr.  Gladstone's  second  administration  (1880- 
85)  the  Irish  members  took  advantage  of  this  fact  to 
block  all  parliamentary  business  by  talking  against 
time.  This  has  rendered  it  necessary  for  the  House 
somewhat  reluctantly  to  adopt  a  rule  of  closiu^  (stand- 
ing order  of  1882,  revised  1887).  Under  the  present 
regulations  a  motion  can  be  made  for  terminating  the 
debate;  the  Speaker  is  allowed  to  use  his  discretion  as 
to  whether  or  not  he  will  submit  the  motion  to  a  vote. 
A  similar  purpose  is  effected  by  what  is  called  the 
"closure  by  compartments"  or  the  "guillotine,"  which 
consists  in  a  resolution  of  the  House  either  altogether 
precluding  discussion  on  certain  clauses  of  a  bill  or 
limiting  the  time  to  be  allotted  to  the  bill  or  to  parts 
of  it.i 

2.  The  bicameral  system;  reasons  for  its  adoption. 
Of  all  the  means  that  have  been  used  to  secure,  in  the 
work  of  legislation,  a  due  amount  of  caution  and  re- 
flection, the  most  important  is  the  division  of  the  legis- 
lature into  two  parts,  creating  thus  what  is  called  a 
two-chambered  or  bicameral  legislature.  It  is  not 
meant  that  the  desire  to  avoid  precipitate  action  is  the 
sole  reason  for  estabUshing  a  legislature  of  this  sort;  it 
will  presently  be  seen  that  it  often  serves  other  pur- 
poses as  well,  but  such  is  none  the  less  the  main  ground 
on  which  the  separation  of  the  legislature  into  two  parts 
is  to  be  defended.  At  the  present  time  the  bicameral 
system  is  of  almost  universal  prevalence.  The  United 
States,  the  United  Kingdom,  France,  and  all  the  chief 
countries  of  Europe  have  bicameral  legislatures.   The 

^  See  Anson,  Low  and  Custom,  part  i. 


THE  LEGISLATURE  159 

exceptions  are  few  and  of  a  special  nature.  The  German 
bicameral  Reichstag  and  Bundesrath  gave  way  at  the 
close  of  the  war  to  a  single  National  Assembly  (Reich- 
stag) elected  in  1919.  Mexico  and  the  South  American 
states  have  copied  the  United  States  in  estabUshing 
"congresses"  composed  of  senates  and  houses  of  repre- 
sentatives, in  some  cases  (as  in  Brazil)  denominated 
chambers  of  deputies.  Even  in  the  subdivisions  of 
federal  governments  the  bicameral  structure  of  the 
legislature  is  often  found.  All  of  the  forty-eight  States 
of  the  Union  have  legislatures  consisting  of  a  senate  and 
another  house.  In  Canada  two  of  the  provinces  (Quebec 
and  Nova  Scotia)  have  an  upper  and  a  lower  house,  and 
the  "states"  of  the  Commonwealth  of  Australia  have 
all  double  legislatures,  as  had  also  the  different  king- 
doms, duchies,  etc.,  of  which  the  German  Federation  was 
composed  before  the  Great  War.  Japan,  in  reconstruct- 
ing its  government  in  the  light  of  European  experience 
in  1889,  deliberately  set  up  a  bicameral  system. 

The  objections,  indeed,  against  a  unicameral  system 
are  of  overwhelming  force.  "Of  all  the  forms  of  gov- 
ernment which  are  possible  among  mankind,"  writes 
the  distinguished  historian  W.  E.  H.  Lecky,  "I  do  not 
know  of  any  which  is  likely  to  be  worse  than  the  gov- 
ernment of  a  single  omnipotent  democratic  chamber."  * 
Mr.  Lecky  undoubtedly  states  the  case  too  strongly. 
The  fact  remains,  however,  that  the  unicameral  legisla- 
ture has  been  tried  and  found  wanting.  A  single  legis- 
lative house,  unchecked  by  the  revising  power  of  an- 
other chamber  associated  with  it,  proves  itself  rash  and 
irresponsible;  it  is  too  much  exposed  to  the  influence 
of  the  moment;  it  is  swayed  by  emotion,  by  passion,  by 
the  influence  of  oratory;  it  is  Uable  to  a  sudden  access 

^  Democracy  and  Liberty. 


160    THE  STRUCTURE  OF  THE  GOVERNMENT 

of  extravagance  or  of  retrenchment.  But  quite  apart 
from  these  more  or  less  psychological  arguments,  there 
are  other  practical  objections  to  a  single  legislature. 
Elected  (in  most  cases)  all  at  the  same  time,  its  mem- 
bers represent  the  opinions  of  the  conamunity  at  a  par- 
ticular moment  and  on  particular  issues.  But  the  lapse 
of  time  and  the  appearance  of  new  public  questions 
may  render  a  legislature  such  as  this  quite  out  of  har- 
mony with  pubUc  opinion  long  before  its  term  has 
expired.  A  somewhat  natural  confusion  of  thought 
tended  in  the  past  to  confound  the  existence  of  a  single 
legislative  chamber  with  the  principle  of  popular  sover- 
eignty, as  if  the  rule  of  the  people  would  not  allow  of 
the  existence  of  a  second  house.  Such  a  confusion  arose 
from  the  historical  fact  that  in  its  origin  the  British 
House  of  Lords  was  an  aristocratic  institution.  As  a 
consequence  of  this,  the  democrats  of  the  French  Rev- 
olution adopted  (1791)  a  legislature  of  a  single  house; 
the  proposal  to  unite  with  it  an  upper  chamber  was 
rejected  in  the  Constituent  Assembly  as  savoring  of 
aristocratic  ideas.  The  same  error  was  committed  in 
1848  in  the  constitution  of  the  Second  French  Republic. 
The  abortive  German  parliament  of  1848  consisted  of 
a  single  house.  Even  in  the  United  States  unicameral 
legislatures  have  been  tried.  Georgia  and  Pennsylvania 
in  1790,  and  Vermont  in  1836,  successively  abandoned 
the  system  in  favor  of  the  now  universal  double  legis- 
latures. The  idea  that  the  existence  of  a  second  branch 
of  the  legislature  is  not  compatible  with  popular  sover- 
eignty is  indeed  purely  fallacious.  The  two  houses  may 
each  of  them  draw  their  power  from  the  people,  al- 
though elected  for  different  terms  and  by  different 
districts.  The  division  between  the  two  need  not  in 
any  way  imply  the  existence  of  caste,  or  follow  the  line 


THE  LEGISLATURE  161 

of  the  social  stratification  of  society.  The  senates  of 
the  United  States  and  France  are  obvious  illustrations. 
3.  Composition  of  upper  houses.  Granted  the  need 
of  the  existence  of  an  upper  house,  the  next  point  to 
be  considered  is  the  manner  of  its  composition.  It 
may  be  here  incidentally  mentioned  that  the  term 
"upper  house,"  famiUarly  used  to  refer  to  a  particular 
part  of  the  legislature,  is,  of  course,  at  the  present  day 
a  misnomer.  In  the  matter  of  constitutional  power  the 
so-called  "upper"  house  is  in  nearly  all  cases  the  weaker 
of  the  two.  The  term  is  merely  an  historic  one;  for  lack 
of  a  better,  it  is  still  convenient  to  retain  its  use.  The 
composition  of  an  upper  house  may  be  based  on  the 
principles  of  hereditary  oflfice,  of  appointment,  of  elec- 
tion, or  on  a  combination  of  these.  Let  us  consider 
these  different  methods  in  turn.  The  hereditary  prin- 
ciple as  appUed  to  the  pohtical  construction  of  the 
future  need  not  be  taken  seriously.  It  is  not  probable 
that  any  civilized  community,  not  already  having  an 
hereditary  legislature,  will  deliberately  bring  one  into 
being.  It  is  true  that  the  principle  was  used  to  some 
extent  in  the  creation  of  the  House  of  Lords  in  Japan 
(1889),  but  rather  as  a  recognition  of  social  and  poht- 
ical differences  already  existing  than  as  a  creation  of 
new  ones.  "The  idea  of  hereditary  legislators,"  wrote 
Thomas  Paine  in  his  Rights  of  Man  (1791),  "is  as 
inconsistent  as  that  of  hereditary  judges,  or  hereditary 
juries,  and  as  absurd  as  an  hereditary  mathematician, 
or  an  hereditary  wise  man,  and  as  ridiculous  as  an 
hereditary  poet-laureate."  It  is  one  thing,  however,  to 
object  to  the  hereditary  principle  in  the  construction  of 
a  new  legislature,  and  another  to  demand  its  aboUtion 
where  it  already  exists.  In  many  countries  it  has  had 
its  origin  in  the  historic  evolution  of  the  government,  it 


162    THE  STRUCTURE  OF  TBGE  GOVERNMENT 

corresponds  to  the  social  distinctions  which  exist  as  an 
undeniable  fact  in  the  structure  of  the  community,  and 
it  operates  on  the  whole  fairly  well.  Such  is  undoubtedly 
the  case  with  the  British  House  of  Lords.  There  is  at 
present  no  very  intense  opposition  to  the  continued  ex- 
istence of  the  House:  true,  the  extreme  radicals  and  the 
socialists  have  long  demanded  its  abolition,  and  the 
further  reform  of  the  House,  beyond  that  effected  by 
the  Parliament  Act  of  1911,  is  an  active  issue  in  British 
poUtics.  But  the  opposition  to  it  from  the  Uberals  has 
arisen  rather  from  the  fact  that  the  House  of  Lords  is 
overwhelmingly  and  hopelessly  conservative  than  from 
repugnance  to  the  nature  of  its  structure. 

The  British  House  of  Lords  is  based,  indeed,  on  the 
hereditary  principle  to  a  larger  extent  than  any  exist- 
ing legislature.  It  contained  in  1920  about  six  hundred 
and  eighty  members  (the  number  varying  through 
deaths  and  new  creations  of  peerages).  Included  in 
these  were  the  princes  of  the  royal  house,  six  were 
members  appointed  for  life,  —  the  six  eminent  jurists 
who  are  created  lords  of  appeal,  to  supply  the  House 
with  proper  legal  knowledge  when  sitting  as  a  court,  — 
twenty-six  were  archbishops  and  bishops  of  the  Estab- 
lished Church,  sixteen  were  elected  by  the  Scotch  peers 
from  among  their  number,  twenty-eight  were  elected  by 
the  Irish  peers,  and  the  rest  the  members  of  the  peerage 
of  the  United  Kingdom.  The  creation  of  a  peerage 
carries  with  it  the  hereditary  right  to  a  seat  in  the 
House  of  Lords,  nor  has  the  crown  the  power  to  make 
life  appointments  other  than  the  six  mentioned  above. 
The  Continental  legislatiu-es  which  make  use  of  the 
hereditary  principle  apply  it  only  in  a  partial  degree  to 
the  composition  of  the  upper  house.  Along  with  the 
princes  of  the  blood  and  the  hereditary  members,  there 


THE  LEGISLATURE  163 

are  included  a  large  number  of  members  appointed  by 
the  crown  for  life  only.  This  is  the  case  with  Prussia/ 
Austria/  Hungary/  and  Spain.  But  of  these  it  is  only 
in  Hungary  ^  that  the  hereditary  peers  form  a  majority 
of  the  house.  In  Spain  and  Austria  ^  a  representation  is 
also  given  to  the  Roman  Catholic  Church;  in  Hungary  ^ 
the  Greek,  Protestant,  and  Roman  Catholic  churches 
are  all  represented  in  the  upper  house;  the  clerical 
representation  is  in  all  cases  very  much  in  the  minor- 
ity. The  Prussian  House  of  Lords  ^  includes  a  number 
of  elected  members  representing  the  land-owners,  to- 
gether with  representatives  of  the  universities,  the 
mayors  of  towns  of  over  fifty  thousand  people,  etc. 
Spain  has  also  a  large  number  of  elected  "senators," 
representing  the  commercial  and  provincial  states,  the 
universities,  etc.  It  is  to  be  observed  that  even  in  cases 
where  the  hereditary  seats  are  dehberately  granted  to 
the  nobles  under  a  modern  constitution  (as  in  Prussia, 
1850,  Spain,  1876),  they  really  represent  a  continuation 
of  the  peculiar  civil  and  poUtical  privileges  (rights  of 
local  government,  feudal  dues,  immunity  from  taxes, 
etc.)  formerly  enjoyed  by  the  nobles,  or  a  compensation 
for  a  loss  of  the  same.  The  hereditary  portion  of  the 
legislature  is  thus  everjrwhere  to  be  regarded  only  as  a 
survival  of  the  past.  There  are  no  hereditary  members 
in  the  upper  houses  of  France,  Switzerland,  the  Nether- 
lands, Denmark,  Belgium,  Norway,  Sweden,  Italy,  ex- 
cepting only,  in  the  latter  case,  the  princes  of  the  royal 
family.  i:f  n;vi,  T    .(•'•'  \  •■     ■ 

In  many  legislatures  the  seats  in  the  upper  house, 
or  at  any  rate  in  a  part  of  it,  are  neither  held  by  an 
hereditary  tenure  nor  filled  by  election.  The  members 
are  appointed  to  their  office,  the  nominations  being 

•  As  before  the  revolution  of  1918-19. 


164    THE  STRUCTURE  OF  THE  GOVERNMENT 

made  almost  invariably  by  the  executive  govenmient. 
Such  a  system,  though  at  first  sight  repugnant  to  the 
idea  of  popular  government,  has  a  great  deal  in  its  favor. 
Experience  has  shown  that  the  process  of  popular  elec- 
tion does  not  always  result  in  the  selection  of  the  ablest 
and  most  upright  men  of  the  country.  Election  is  apt 
to  favor  the  candidates  who  possess  in  a  high  degree 
the  more  popular  arts,  who  have  a  readiness,  or  even 
a  ready  buffoonery  in  speech,  who  are  not  sensitive  to 
poUtical  abuse,  and  who  have  a  reputation  (military, 
for  example)  calculated  to  appeal  to  the  imagination 
of  the  crowd.  It  does  not  follow  that  these  men,  when 
elected,  are  the  best  suited  for  the  legislative  office. 
There  are  in  every  community  many  men  of  very  great 
talent,  conspicuous  perhaps  in  science  or  Hterature,  who 
would  never  be  elected  at  the  polls,  who  would  probably 
hesitate  to  offer  themselves  as  candidates,  and  who 
nevertheless  are  admirably  fitted  both  by  theh:  intellect 
and  their  character  for  a  seat  in  the  legislature.  The 
system  of  appointment  renders  it  possible,  in  theory  at 
least,  for  men  of  this  class  to  be  selected.  This  is  the 
principle  that  is  aimed  at  in  the  nominations  to  the 
Senate  of  Italy,  where  the  condition  obtains  that  the 
person  nominated  must  either  have  filled  a  high  office, 
or  have  acquired  fame  in  literature,  science,  or  some 
other  pursuit  tending  to  the  benefit  of  the  nation. 
Many  of  the  Continental  legislatures,  as  already  seen, 
admit  of  a  partial  construction  of  the  upper  houses  on 
this  plan.  The  system  of  nomination  is  seen  in  its  en- 
tirety in  the  Senate  of  the  Kingdom  of  Italy  and  in  the 
Senate  of  the  Dominion  of  Canada.  In  Italy  all  the 
senators,  exclusive  of  the  members  of  the  royal  family, 
are  nominated  for  life  by  the  king,  and  are  selected  out 
of  the  following  classes:  bishops,  high  officials,  mem- 


THE  LEGISLATURE  165 

bers  of  the  lower  house  after  three  terms  of  service, 
members  of  the  Royal  Academy  of  Science,  those  who 
pay  six  hundred  dollars  a  year  or  more  in  taxes,  and 
men  who  have  benefited  the  nation  in  hterature,  art, 
etc.  In  Canada  the  Senate  is  composed  of  members 
nominated  for  life  by  summons  of  the  Governor-General, 
the  total  number  and  the  number  from  each  province 
being  limited.  Experience  has  unfortunately  shown  that 
nominated  senates  are  better  in  theory  than  in  fact. 
The  difl&culty  encountered  in  practice  is  that,  whatever 
may  be  the  nominal  constitutional  power  of  such  a 
senate,  it  is  in  reaUty  unable  to  act  as  a  counterbalancing 
force  to  the  house  elected  by  the  people.  The  Senate  of 
Italy  is  a  feeble  body,  and  can  offer  no  real  opposition 
to  the  Chamber  of  Deputies.  In  Canada  also  the  par- 
liamentary Ufe  and  parUamentary  power  are  centered  in 
the  House  of  Commons. 

It  remains  to  consider  the  system  of  election  as  ai>- 
plied  to  the  composition  of  upper  houses.  This  is  the 
method  used,  either  in  direct  or  indirect  form,  in  the 
United  States,  both  in  the  federal  and  state  governments, 
in  Mexico,  Cuba,  and  the  other  Latin-American  re- 
publics, in  France,  Belgium,  and  the  Conamonwealth 
of  Australia.  The  dij05culty  encountered  here  at  the 
outset  is  the  danger  of  making  the  upper  house  a  mere 
redupUcation  of  the  lower,  which  would  serve  but  Uttle 
purpose,  and  might  lead  to  a  chronic  constitutional 
deadlock.  Various  means  are  taken  to  overcome  this 
difficulty.  In  the  first  place,  in  a  federal  government, 
especially  since  the  example  set  by  the  United  States 
in  1787,  the  problem  may  be  said  to  solve  itself:  the 
upper  house  may  be  made  especially  representative  to 
the  units  of  the  federation,  the  lower  house  may  repre- 
sent the  people  at  large  on  a  basis  of  population.  Thus 


166    THE  STRUCTURE  OF  THE  GOVERNMENT 

there  are  in  the  United  States  two  senators  for  each 
State,  in  Cuba  four  senators  for  each;  the  Senate  of 
Brazil  has  three  from  each  state,  and  the  Austrahan 
Senate  is  similarly  composed.  In  the  federal  government 
of  the  former  German  Empire  the  constituent  parts  of 
the  federation  were  represented  in  the  Bundesrath,  not 
exactly  on  a  footing  of  equaUty,  nor  yet  in  proportion 
to  population;  even  the  smallest  had  one  vote  each,  and 
Prussia,  the  largest,  had  only  seventeen  votes.  In  all 
these  cases  the  representation  in  the  lower  house  is 
according  to  population.  This  is  an  extremely  useful 
device,  as  it  renders  a  federation  possible  between  units 
of  different  sizes,  the  smaller  of  which  would  be  too 
jealous  of  the  larger  to  enter  a  union  on  a  basis  of  repre- 
sentation purely  proportionate  to  numbers,  while  the 
larger  states  would  be  unwilUng  to  accept  a  federation 
on  terms  of  complete  equality  with  the  smaller  ones. 

A  further  method  of  distinguishing  the  two  houses 
is  found  in  varying  the  system  of  election  and  adopting 
a  direct  election  for  the  lower  house,  and  indirect  for 
the  upper.  This  is  best  seen  in  the  case  of  France.  The 
Chamber  of  Deputies  is  elected  by  direct  universal 
suffrage  from  districts  of  (approximately)  equal  pop- 
ulation. The  election  of  the  Senate  is  indirect,  and  is 
made  by  an  "electoral  college"  in  each  department  of 
France,  consisting  of  the  deputies,  councilors-general 
and  district  councilors  (members  of  the  councils  for 
local  government),  and  representatives  from  the  munic- 
ipal council  of  every  commune:  the  latter  class  form 
a  large  majority  of  the  total  college.  The  original  in- 
tention was  to  make  the  Senate  especially  representative 
of  the  organic  Ufe  of  the  commune,  or  parish,  while  the 
deputies  should  represent  the  nation  at  large.  Indirect 
election  was  also  used  in  the  United  States,  where  the 


THE  LEGISLATURE  167 

senators  were  elected  by  the  state  legislatures  until 
the  principle  of  popular  election  was  introduced  by  the 
Seventeenth  Amendment  to  the  Constitution  in  1913. 
In  the  state  governments  the  senators  are  elected  by 
the  people,  the  election  district  being,  however,  different 
from  that  used  for  elections  to  the  Assembly.  In  ad- 
dition to  the  difference  in  the  manner  of  elections,  a 
differentiation  can  be  made  by  the  use  of  different 
electoral  districts  for  the  two  houses,  as  already  indi- 
cated, by  adopting  terms  of  office  of  different  length, 
and  by  the  system  of  partial  renewal.  For  example,  a 
United  States  senator  sits  for  six  years,  a  member  of  the 
House  of  Representatives  only  for  two;  in  France,  while 
the  deputies  have  a  four  years*  term,  a  senator  sits  for 
nine  years.  Similarly  in  the  United  States,  one  third  of 
the  Senate  is  renewed  every  two  years;  in  France  and 
in  the  Netherlands,  one  third  of  the  upper  house  is 
renewed  every  three  years.  This  method  of  partial  re- 
newal is  of  particular  efficacy  and  importance.  It  lends 
a  character  of  permanency  and  stability  to  the  upper 
house,  which  offsets  the  tendency  of  the  lower  one  to  a 
too  complete  change  of  membership  and  of  sentiment 
as  the  result  of  a  general  election. 

4.  Distribution  of  power  between  the  two  houses.  So 
much  for  the  question  of  the  composition  of  the  two 
houses;  let  us  turn  now  to  consider  the  relative  degree 
of  power  to  be  entrusted  to  them.  The  usual  practice  if 
that  the  two  houses  are,  in  almost  all  matters  of  legis- 
lation, equal  and  coordinate;  either  house  may  originate 
a  bill,  and  no  bill  thus  originated  can  become  law  with- 
out the  consent  of  the  other  house.  Either  house,  too, 
may  propose  amendments  to  a  bill,  which  will  only  be- 
come valid  by  receiving  the  consent  of  the  other.  To 
this  general  rule  there  is  one  most  notable  exception.  In 


i68    THE  STRUCTURE  OF  THE  GOVERNMENT 

the  case  of  bills  referring  to  the  raising  and  spending  of 
money,  the  powers  of  the  upper  house  in  most  of  the 
chief  states  of  the  world  are  more  or  less  limited.  For 
this  different  reasons  are  assigned,  in  part  historical,  in 
part  rational.  Historically  we  may  consider  this  to  have 
come  about  in  imitation  of  the  relation  existing  between 
the  House  of  Lords  and  the  Commons  in  England,  where 
the  power  of  the  purse  ever  since  the  fourteenth  century 
has  been  vested  exclusively  in  the  Commons.^  But  it 
hardly  seems  correct  to  regard  this  almost  universal 
restriction  on  the  power  of  upper  houses  as  merely  an 
accidental  adaptation.  There  seems  excellent  reason  for 
it  as  well.  In  the  case  of  most  of  the  bills  introduced  in 
a  legislature  no  great  harm  ensues  if  the  proposals  of 
one  house  are  rejected  by  the  other;  matters  merely 
remain  where  they  were  before.  But  in  the  matter  of 
money  bills  the  case  is  different;  if  no  bill  is  passed  for 
the  raising  and  spending  of  money  the  public  service  will 
come  to  a  full  stop.  It  therefore  seems  wiser  to  make 
the  wishes  of  one  house  more  or  less  decisive  in  the  mat- 
ter; and  of  the  two,  the  house  more  directly  and  pro- 
portionately representing  the  people  appears  to  be  the 
natural  one  to  entrust  with  this  power.  The  disabihty 
thus  laid  on  the  upper  house  in  matters  of  finance  varies 
in  different  legislatures.  It  is  most  complete  in  the  case 
of  the  British  House  of  Lords.  This  body,  by  the  custom 
of  the  constitution,  and  in  accordance  with  the  ParUa- 
ment  Act  of  1911,  has  no  power  to  originate,  amend,  or 
reject  a  bill  for  the  raising  or  spending  of  money.  Other 
houses,  as  is  the  case  with  the  House  of  Lords  in  Prus- 
sia, ^  and  the  first  chamber  of  the  Netherlands,  while 

•  Taswell-LaniEmead,  Constitutional  History,  chap.  viir.    See  also 
ESdward  Jenks,  Ttie  Government  0/  the  British  Empire  (1918),  chap.  vu. 
^  At  least  prior  to  1919. 


THE  LEGISLATURE  169 

forbidden  to  originate  or  amend  money  bills,  are  em- 
powered to  reject  them  en  bloc.  France  offers  a  doubtful 
case;  the  Senate  is  forbidden  to  originate  measures  of 
finance  and  has  certainly  power  to  reject  them,  but  the 
question  of  its  right  to  amend  is  a  constitutional  point 
not  yet  clearly  settled.^  The  Senate  of  the  United 
States  represents  a  higher  step  in  the  ascending  series 
of  powers.  "All  bills  for  raising  revenue,"  says  the 
Constitution  (art.  i,  sec.  7),  "shall  originate  in  the  House 
of  Representatives,  but  the  Senate  may  propose  or 
^nciu:  with  amendments  as  on  other  bills."  In  reaUty 
this  amending  power  is  used  by  the  Senate  with  such 
latitude  as  to  render  the  two  houses  in  their  legislative 
capacity  what  Lord  Bryce  has  called  "really  equal  and 
coordinate."  In  a  few  cases,  in  the  federal  legislature 
of  the  German  Empire  ^  and  in  Switzerland,  the  two 
houses  are  legally  on  a  footing  of  equality  in  regard  to 
money  bills.  In  Austria'^  an  ingenious  expedient  was 
added  for  preventing  the  disagreement  of  the  two  houses 
from  stopping  the  wheels  of  government.  It  was  part  of 
the  fundamental  law  that  if  the  two  houses,  even  after 
consultation,  could  reach  no  agreement  in  regard  to  a 
financial  measure,  then  the  lower  sum  of  money  voted 
(by  either  house)  is  considered  as  granted. 

In  all  matters  other  than  money  bills  it  is  usual  that 
the  two  houses  are  on  a  footing  of  equality  as  far  as 
the  law  of  the  constitution  is  concerned.  But  in  practice 
it  generally  happens  that  the  lower  house  is  decidedly 
the  "predominant  partner";  in  the  case  of  a  conflict 
between  the  two,  pubHc  opinion  is  generally  in  favor  of 
the  house  which  more  immediately  stands  for  the  vote 

*  Lowell,  OovemmerUa  and  Parties ;  Simonet,  Traiii  JEUmentaire  du 
Droit  Public.  , ,  ,      i 

1  As  before  1919. 


170    THE  STRUCTURE  OF  THE  GOVERNMENT 

of  the  people,  and  circumscribes  to  a  large  extent  the 
resistance  that  can  be  offered  by  the  upper  house  to  the 
more  popular  body.  This  is  the  explanation  of  the  rela- 
tively feeble  power  of  the  senates  of  France,  Italy,  and 
Canada.^  The  cases  of  the  German  Bundesrath^  and 
the  American  Senate,  which  enjoy  a  power  practically 
greater  than  that  of  the  lower  house,  are  quite  excep- 
tional. The  Senate  of  the  United  States  owes  its  exten- 
sive power  partly  to  its  federal  character,  by  virtue  of 
which  it  represents  the  States  in  their  separate  capac- 
ity, partly  to  the  length  of  the  senatorial  term,  and  in 
part  also  to  its  historical  antecedents,  and  the  traditions 
of  political  weight  and  stability  which  it  has  acquired. 
The  constitutional  relations  existing  by  the  custom  of 
the  country  between  the  Lords  and  Commons  of  the 
United  Kingdom  are  quite  unique.  It  is  only  to  be 
expected  that  the  House  of  Lords,  no  part  of  which 
is  elected  by  the  people  either  directly  or  indirectly, 
should  be  able  to  offer  only  a  limited  resistance  to  the 
Commons  even  in  matters  that  are  not  financial.  The 
constitutional  relation  of  the  two  houses,  prior  to  recent 
developments,  is  thus  stated  by  Mr.  Dicey:'  "If  there 
is  a  difference  of  opinion  between  the  House  of  Lords 
and  the  House  of  Commons,  the  House  of  Lords  ought 
at  some  point  (not  definitely  fixed)  to  give  way;  and 
should  the  Peers  not  yield,  and  the  House  of  Commons 
continue  to  enjoy  the  confidence  of  the  country,  it  be- 
comes the  duty  of  the  Crown,  or  of  its  responsible  ad- 
visers, to  create,  or  threaten  to  create,  enough  new 
Peers  to  override  the  opposition  of  the  House  of  Lords, 

»  The  rejection  of  the  Naval  Bill  of  1913  by  the  Canadian  Senate 
showed  a  degree  of  independent  activity  not  previously  anticipated 
by  its  critics.  Since  that  year  several  other  instances  of  vigorous  op- 
position to  the  House  have  been  instanced.  See  Sir  G.  W.  Ross,  The 
Senate  of  Canada  (1914). 

*  As  before  1919.  *  Law  of  the  Constitution. 


THE  LEGISLATURE  171 

and  thus  restore  harmony  between  the  two  branches 
of  the  legislature."  By  the  "confidence  of  the  coun- 
try" is  meant  the  endorsation  of  the  conduct  of  the 
Commons,  or  more  correctly  of  the  majority  in  the 
Commons,  by  the  people  voting  in  a  general  election  on 
the  issue  involved.  This  constitutional  relation  is  some- 
times briefly  stated  by  saying  that  the  Lords  have  no 
right  to  oppose  the  Commons  on  the  issue  on  which  the 
Commons  were  elected.  The  precedent  involved  was 
established  by  the  passage  of  the  Reform  Bill  of  1832. 
The  Lords  insisted  on  opposing  the  measure  even 
though  a  dissolution  of  Parhament  resulted  in  the  elec- 
tion of  a  new  House  of  Commons  overwhelmingly  in 
support  of  parliamentary  reform.  The  written  threat 
of  the  king  (WiUiam  IV)  to  create  peers  in  favor  of 
the  bill,  forced  the  Lords  to  withdraw  their  opposition. 
In  accordance  with  this  precedent  the  Lords  have  found 
themselves  several  times  compelled  to  waive  their  legal 
right  of  resistance  to  the  Commons.  The  bills  for  the 
repeal  of  the  corn  laws  (1846)  and  for  the  disestablish- 
ment of  the  Irish  Church  (1869)  are  cases  in  point. 
That  the  precedent  had  not  altogether  shattered  the 
constitutional  power  of  the  Lords  was  seen  in  their  re- 
jection of  Mr.  Gladstone's  Home  Rule  Bill  (1893).  In 
spite  of  the  fact  that  they  were  opposing  a  House  of 
Commons  elected  directly  on  the  question  of  home  rule, 
the  Lords  threw  out  the  bill;  it  was  argued  in  support 
of  their  action  that  though  the  electorate  had  spoken  in 
favor  of  home  rule,  they  had  not  endorsed  this  partic- 
ular bill,  which  had  not  yet  been  made  public  at  the 
time  of  the  election.  A  further  argument  was  found 
in  the  fact  that  the  bill  had  been  forced  through  the 
Commons  by  means  of  the  closure  which  had  perhaps 
unduly  abbreviated  debate. 


172    THE  STRUCTURE  OF  THE  GOVERNMENT 

Within  recent  years  the  constitutional  relation  of  the 
two  houses  of  the  British  legislature  has  undergone  a 
further  readjustment.  The  House  of  Lords  rejected 
the  Finance  Bill  passed  by  the  Commons  in  1909.  Cer- 
tain portions  of  the  bill,  as  notably  the  introduction  of 
a  tax  on  the  increase  of  land-values,  were  regarded  by 
the  majority  of  the  Lords  as  social  rather  than  financial 
legislation  and  as  subject  therefore  to  the  free  action  of 
that  House.  The  rejection  of  the  bill  led  to  a  prolonged 
constitutional  crisis  which  resulted  in  the  passage  of  the 
Parliament  Act  of  1911  (1  and  2  Geo.  V,  ch.  13).  Under 
this  statute  any  money  bill  which  the  House  of  Lords 
refuses  to  pass  in  the  form  in  which  it  has  come  up  from 
the  Commons,  may  become  law  by  the  signification  of 
the  royal  assent.  The  decision  as  to  what  is  or  what  is 
not  a  money  bill  rests  with  the  Speaker  of  the  House  of 
Commons.  Public  bills  other  than  money  bills  or  a  bill 
extending  the  maximum  duration  of  Parliament  may 
also  become  law  without  the  consent  of  the  House  of 
Lords,  provided  that  they  have  been  passed  by  the 
Commons  in  three  successive  sessions  (of  the  same  or 
of  consecutive  Parliaments),  and  provided  also  that  two 
years  have  elapsed  between  the  second  reading  in  the 
first  session  of  the  House  of  Commons  and  the  third 
reading  in  the  third  session.  The  bills  in  question  must 
be  sent  up  to  the  House  of  Lords  at  least  one  month 
before  the  end  of  the  session.  The  same  act  limits  the 
duration  of  Parliament  to  five  years. 

Whatever  arrangements  may  exist,  either  legal  or 
customary,  there  always  remains  in  the  background  the 
danger  of  conflict  or  even  of  an  actual  deadlock  between 
the  two  houses.  In  most  legislatm-es,  as,  for  instance,  in 
the  Congress  of  the  United  States  and  in  the  Parlia- 
ment of  the  United  Kingdom,  this  danger  is  lessened 


THE  LEGISLATURE  173 

by  the  system  of  conferences  between  representatives 
of  each  house.  In  the  Congress,  when  the  houses  are 
unable  to  agree  over  amendments,  three  members  of 
the  Senate  are  appointed  to  confer  with  three  members 
of  the  House  of  Representatives,  with  a  view  to  arrang- 
ing a  compromise.  Although  serious  differences  of  opinion 
have  often  existed  between  the  two  houses  of  Congress, 
the  possibility  of  an  actual  deadlock  bringing  the  legis- 
lative machinery  to  a  standstill  is  not  one  of  the  special 
dangers  in  the  American  system.  Beyond  the  plan  of 
committees  of  conference  there  is  no  legal  machinery 
for  forcing  an  agreement  between  the  two  houses.  The 
case  is  quite  different  with  the  constitution  of  the  Com- 
monwealth of  Australia.  Australian  legislatures,  espe- 
cially the  legislatures  of  Victoria,  have  experienced  the 
very  serious  dangers  that  may  be  threatened  by  the 
obstinate  disagreement  of  the  upper  and  lower  house.  ^ 
As  a  result  of  the  difficulties  that  have  thus  arisen,  the 
constitution  of  the  conunonwealth  contains  provisions 
that  are  intended  to  render  impossible  a  complete  dead- 
lock in  the  federal  legislature.  The  Governor-General 
is  empowered  in  the  event  of  the  House  presenting  and 
re-presenting  a  bill,  and  the  Senate  persistently  reject- 
ing it,  to  dissolve  both  houses  simultaneously.  If  after 
a  new  election  the  same  situation  persists,  the  Governor 
may  convene  a  joint  sitting,  the  vote  in  which  is  final.' 
5.  Direct  legislation;  the  initiative  and  the  referen- 
dum. As  a  conclusion  to  our  discussion  of  the  legis- 
lature and  the  legislative  process,  we  may  briefly  advert 
to  what  is  called  direct  legislation,  or  the  making  of  laws 
by  means  of  the  action  of  the  people  themselves.  That 

•  For  an  account  of  the  experience  of  Victoria  in  this  connection, 
and  the  political  crisis  of  1877,  see  Edward  Jenks,  Gocemmeni  0/  ViC' 
toria,  part  iv,  chap.  xxxm. 

«  Commonwealth  Act,  i  67. 


174    THE  STRUCTURE  OF  THE  GOVERNMENT 

the  whole  of  the  people,  or  at  any  rate  of  the  voters, 
should  participate  in  the  process  of  legislation  seems  in 
a  sense  the  embodiment  of  the  idea  of  democratic  self- 
government.  Rousseau  regarded  it  as  the  only  true 
expression  of  popular  sovereignty.  In  some  form  or 
other  it  has  been  known  since  the  earhest  historical 
times.  At  Athens  there  existed  the  Ecclesia,  an  assembly 
of  all  the  free  citizens,  erected  by  Solon  in  the  sixth 
century  b.c.  into  an  organ  of  general  poUtical  control. 
In  it  the  citizens  decided  on  questions  of  peace  and  war, 
and  voted  on  matters  laid  before  them  by  the  Council 
of  Four  Hundred.  The  Romans  also  had  their  Comitia 
Tributa,  or  meeting  of  the  people  by  tribes,  which  be- 
came in  the  latter  days  of  the  republic  a  lawmaking 
assembly.  In  the  smaller  cantons  of  Switzerland  the 
Landesgemeinde,  or  gathering  of  the  people,  has  acted 
from  time  immemorial  as  a  legislative  body.  Such  or- 
gans of  government  were  rendered  possible  in  the  city- 
states  of  the  classical  world,  and  in  the  cantons  of  Swit- 
zerland, by  reason  of  their  restricted  territorial  extent. 
In  the  larger  states  of  the  world  an  actual  gathering  of 
the  people  is  a  physical  impossibility.  The  sovereignty 
of  the  people  has  worked  itself  out  by  means  of  repre- 
sentative assemblies.  But  at  the  present  day  the  growth 
of  rapid  communication  by  post  and  telegraph  renders  it 
possible  to  have  recourse  to  some  extent  to  the  whole 
body  of  the  citizens  in  the  making  of  the  law;  the  people 
of  a  great  state  cannot,  it  is  true,  be  all  gathered  to- 
gether in  one  place  in  a  deliberative  capacity,  but  it  is 
possible  for  them  all  at  one  and  the  same  time  to  give 
their  vote  upon  any  measure  proposed.  The  system  of 
direct  legislation  which  is  thus  rendered  possible  has  been 
favored  by  the  growing  distrust  of  representative  legis- 
latures which  is  noticed  in  so  many  democratic  coimtries 


THE  LEGISLATURE  175 

at  the  present  day.  There  is  an  increasing  tendency  to 
rely  on  the  general  will  of  the  whole  people  as  expressed 
in  a  direct  vote.  "  The  people,"  says  Professor  Goldwin 
Smith,  "cannot  be  lobbied,  wheedled,  or  bulldozed; 
the  people  is  not  in  fear  of  its  reelection  if  it  throws  out 
something  supported  by  the  Irish,  the  Prohibitionist, 
or  the  Methodist  vote."  As  against  this  contention  it 
may  properly  be  advanced  that  the  making  of  laws 
requires,  like  every  other  task  of  importance,  a  special 
training  and  experience,  and  that  the  interests  of  the 
people  are  really  safer  in  the  hands  of  carefully  chosen 
legislatures  than  when  submitted  to  the  hazards  of  a 
popular  vote.  The  fact  that  in  every  community  a 
large  proportion  of  the  citizens  are  of  necessity  too 
much  absorbed  in  their  own  affairs  to  be  able  to  prop- 
erly consider  the  public  questions  submitted  to  them,  is 
also  of  considerable  weight.  Rightly  or  wrongly,  how- 
ever, legislation  by  the  people  is  already  used  to  a  con- 
siderable extent.  It  assumes  several  forms.  Of  these 
the  most  important  is  the  referendum,  or  submission  to 
the  popular  vote  of  a  proposed  measure  or  constitu- 
tional change  which  becomes  law  if  ratified  by  the  re- 
quired majority.  The  initiative  means  the  legal  right 
of  the  people,  acting  by  petition  and  in  sufficient  num- 
ber, to  cause  a  legislative  measure  to  be  brought  to  a 
popular  vote.  There  is  in  the  third  place,  the  recall,  or 
the  removal  of  an  executive  or  judicial  official  from  office 
by  a  popular  vote.^ 

It  is  in  Switzerland  more  than  anywhere  else  that 
direct  legislation  is  in  use.  In  four  of  the  twenty-two 
cantons  of  Switzerland  (Uri,  Unterwalden,  Appenzell, 

•  The  word  "plebiscite"  is  used  in  a  general  sense  for  any  kind  of 
popular  vote  on  an  issue.  It  would  be  convenient  to  restrict  its  use 
to  votes  taken  as  an  expression  of  opinion  without  involving  legal  con- 
sequences. 


176    THE  STRUCTURE  OF  THE  GOVERNMENT 

and  Glarus)  there  still  exists  the  immemorial  Lander 
gemeinde,  or  Congregation  of  the  district.  In  Uri,  for 
example  (of  which  the  total  population  in  1916  wag 
24,000),  the  people  meet  once  a  year  in  a  large  meadow, 
where  they  vote  taxes,  pass  laws,  and  elect  their  execu- 
tive officers  for  the  coming  year.  Even  in  the  cantons 
which  have  representative  legislatures  the  referendum 

—  the  submission  of  the  laws  to  the  vote  of  the  people 

—  is  largely  used.  In  about  half  of  them  it  is  "op^ 
tional,"  employed,  that  is  to  say,  only  when  called  for 
by  petition.  In  all  the  rest  (except  Freiburg)  it  is  "ob- 
ligatory," and  must  be  used  for  all  legislative  measures 
of  importance.  In  all  the  cantons  changes  in  the  con- 
stitution can  only  be  made  if  ratified  by  the  popular 
vote.  The  initiative,  or  right  of  the  people  to  intro- 
duce laws  by  petition,  is  of  more  modern  creation,  hav- 
ing been  first  introduced  into  the  constitutions  of  the 
cantons  in  the  middle  of  the  nineteenth  century.  It 
is  permissible  at  present  in  nearly  all  the  cantons  both 
for  ordinary  measures  of  law,  and  for  constitutional 
changes.  In  the  federal  government  of  Switzerland  the 
referendum  is  compulsory  for  an  amendment  of  the 
constitution.  There  is  also  an  optional  referendum,  re- 
quiring the  submission  of  ordinary  laws  to  the  people 
if  called  for  by  thirty  thousand  citizens  of  eight  cantons 
The  initiative  in  the  shape  of  a  proposal  supported  by 
fifty  thousand  voters  also  exists  in  the  federal  govern- 
ment; though  nominally  admissible  only  on  constitu- 
tional amendments  it  can  in  practice  be  applied  to  any 
measure  by  giving  it  the  form  of  a  change  in  the  consti- 
tution. The  system  thus  established  is  of  great  practical 
importance  in  the  government  of  Switzerland.  Between 
1874  and  1908  thirty  federal  bills  (out  of  a  total  of  two 
hundred  and  sixty-one)  were  submitted  to  a  popular 


THE  LEGISLATURE  177 

vote.  Eleven  were  ratified  and  nineteen  rejected.^  Un- 
fortunately it  is  impossible  to  draw  any  general  conclu- 
sion as  to  the  utility  of  direct  legislation  from  the  ex- 
perience of  Switzerland,  as  its  critics,  both  in  and  out  of 
that  country,  are  much  divided  in  opinion. 

In  the  United  States,  direct  legislation,  though  not 
always  referred  to  by  that  name,  exists  to  a  consider- 
able extent.  There  is  in  the  first  place  an  historic  form 
of  it  in  the  shape  of  the  New  England  "town  meet- 
ing," or  assembly  of  the  electors  of  the  township.  This 
is  almost  a  counterpart  of  the  Landesgemeinde  of 
Switzerland.  The  voters  come  together  in  a  mass  meet- 
ing once  a  year  (and  on  special  occasions  if  called  for  by 
petition)  and  not  only  elect  the  "select  men"  or  ofl&cers 
of  the  township,  but  also  vote  on  the  raising  of  taxes, 
the  spending  of  money,  and  on  other  local  questions. 
The  town  meeting  is  an  instance  of  direct  legislation 
of  the  purest  type,  inasmuch  as  it  permits  of  discus- 
sion as  well  as  voting  in  the  mass  meeting.  ^  Another 
form  of  direct  legislation  is  seen  in  the  ratification  by 
the  people  of  changes  in  the  constitution,  a  system  now 
practically  universal  in  the  United  States.  The  con- 
stitutions of  many  of  the  States  make  a  still  further  use 
of  the  principle.  As  has  already  been  seen,  the  power  of 
the  state  legislature  is  often  restricted  by  a  constitu- 
tional provision  requiring  certain  kinds  of  statutes  to 
be  submitted  to  a  popular  vote.  The  constitution  of 
Pennsylvania  (1873),  for  example,  declares  that  "no 
law  changing  the  location  of  the  capital  of  the  State 

1  See  discussion  by  W.  E.  Rappard,  Am.  Pol.  Sc.  Review,  August, 
1912.  An  excellent  work  on  the  subject  is  that  of  Deploige,  The  Refer- 
endum in  Switzerland.  See  also  F.  A.  Ogg,  The  Governments  of  Europe 
(1913),  part  v. 

•  For  details  as  to  the  New  England  town  meeting  past  and  present 
see  Fiske,  Civil  Government  in  the  United  Statea,  chap.  u. 


178    THE  STRUCTURE  OF  THE  GOVERNMENT 

shall  be  valid  until  the  same  be  submitted  to  the  quali- 
fied electors  of  the  Commonwealth  at  a  general  election, 
and  ratified  and  approved  by  them."  ^  Similar  provi- 
sions in  regard  to  altering  the  location  of  the  capital 
are  found  in  the  constitution  of  many  other  States.  In 
the  same  way  a  clause  of  the  Iowa  constitution  of  1846 
(adopted  later  in  the  constitutions  of  New  York,  Cali- 
fornia, Illinois,  and  a  number  of  Western  States)  pro- 
vides that  laws  for  the  contraction  of  debt  (with  certain 
exceptions)  must  be  submitted  to  the  people.  In  many 
States,  too,  the  raising  of  taxes  beyond  a  stipulated 
hmit  can  only  be  effected  by  means  of  a  popular  vote. 
Of  other  matters  treated  in  this  way  the  alienation  of 
pubUc  property,  the  creation  of  banks,  and  the  exten- 
sion of  the  franchise  to  women  may  be  cited.  Direct 
legislation  is  also  found  in  the  form  of  a  "municipal 
referendum"  in  which  the  people  of  a  county  or  town 
vote  on  the  question  of  the  location  of  the  county  seat, 
the  contraction  of  a  local  debt,  or  the  adoption  of  a  city 
charter.  This  particular  phase  of  direct  legislation, 
whereby  the  making  or  amending  of  city  charters  is  sub- 
mitted to  a  vote  of  the  people  of  the  city,  is  sometimes 
spoken  of  as  municipal  home  rule.  Several  States  of  the 
Union  have  already  made  extensive  use  of  this  system. 
In  California  an  amendment  of  the  constitution  (No- 
vember, 1906)  provided  that  a  petition  of  fifteen  per  cent 
of  the  voters  can  cause  any  proposed  charter  amend- 
ment to  be  submitted  to  a  vote  of  the  people.  In  Oregon 
a  constitutional  amendment  of  1906  gave  to  the  voters 
of  every  city  and  town  power  to  enact  and  to  amend  the 
charters  of  their  municipality.  The  same  development 
is  seen  in  Washington,  Minnesota,  Colorado,  and  other 
States.  The  Michigan  constitution  of  1908  provides  for 
municipal  home  rule. 

>  Constitution,  art.  iii,  }  28. 


THE  LEGISLATURE  179 

Direct  legislation  is  carried  still  further  in  certain 
States  of  the  Union  in  the  form  of  a  general  introduc- 
tion of  the  initiative  and  the  referendum.  South  Da- 
kota by  a  constitutional  amendment  of  1898  provided 
for  the  use  of  the  initiative  and  the  referendum  on  a 
petition  of  five  per  cent  of  the  voters.  Oregon  adopted 
a  state  system  of  initiative  and  referendum  in  1902. 

The  essential  principles  of  the  Oregon  system,  which 
has  become  to  a  large  extent  a  pattern  for  other  com- 
munities, appear  in  the  following  extracts  from  article  iv 
of  the  constitution  of  the  State: 

The  legislative  authority  of  the  State  shall  be  vested  in  a 
legislative  assembly,  consisting  of  a  senate  and  house  of  rep- 
resentatives, but  the  people  reserve  to  themselves  power  to 
propose  laws  and  amendments  to  the  constitution  and  to 
enact  or  reject  the  same  at  the  polls,  independent  of  the  legis- 
lative assembly,  and  also  reserve  power  at  their  own  option 
to  approve  or  reject  at  the  polls  any  act  of  the  legislative  as- 
sembly. The  first  power  reserved  by  the  people  is  the  initiative 
and  not  more  than  eight  per  cent  of  the  legal  voters  shall 
be  required  to  propose  any  measure  by  such  petition.  .  .  . 
The  second  power  is  the  referendum,  and  it  may  be  ordered 
(except  as  to  laws  necessary  for  the  immediate  preservation 
of  the  public  peace,  health,  or  safety),  either  by  the  petition 
signed  by  five  per  cent  of  the  legal  voters,  or  by  the  legisla- 
tive assembly,  as  other  bills  are  enacted.  .  .  .  The  veto  power 
of  the  governor  shall  not  extend  to  measures  referred  to  the 
people.  All  elections  on  measures  referred  to  the  people 
of  the  State  shall  be  had  at  the  biennial  regular  general  elec- 
tions, except  when  the  legislative  assembly  shall  order  a 
special  election.  .  .  .  The  whole  number  of  votes  cast  for 
justice  of  the  supreme  court  at  the  regular  election  last  pre- 
ceding the  filing  of  any  petition  for  the  initiative  or  for  the 
referendum  shall  be  the  basis  on  which  the  niunber  of  legal 
voters  necessary  to  sign  such  petition  shall  be  counted.  .  .  . 
The  initiative  and  referendum  powers  reserved  to  the  people 
by  this  constitution  are  hereby  further  reserved  to  the  legal 
voters  of  every  municipality  and  district  as  to  all  local, 


180    THE  STRUCTURE  OF  THE  GOVERNMENT 

special,  and  municipal  legislation,  of  every  character,  in  or 
for  their  respective  municipalities  and  districts.  The  manner 
of  exercising  said  powers  shall  be  prescribed  by  general  laws, 
except  that  cities  and  towns  may  provide  for  the  manner  of 
exercising  the  initiative  and  referendum  powers  as  to  their 
municipal  legislation.  Not  more  than  ten  per  cent  of  the 
legal  voters  may  be  required  to  order  the  referendum  nor 
more  than  fifteen  per  cent  to  propose  any  measure,  by  the 
initiative,  in  any  city  or  town. 

The  constitution  of  Oregon  also  provides  that  "every 
public  ofl&cer  in  Oregon  is  subject ...  to  recall  by  the 
legal  voters  of  the  State  or  of  the  electoral  district  for 
which  he  is  elected."  No  popular  vote  on  a  recall  is 
taken  unless  twenty  per  cent  of  the  voters  have  peti- 
tioned for  it. 

A  similar  general  system  of  referendum  and  initiative 
and  recall  has  now  been  adopted  in  a  number  of  States, 
especially  in  the  western  half  of  the  Union.  The  consti- 
tutions of  Arizona,  Montana,  Oklahoma,  Washington, 
etc.,  may  be  cited  in  this  connection.^ 

The  whole  system  is  decidedly  growing  in  favor,  espe- 
cially in  the  western  part  of  the  Union,  and  profits  by 
the  distrust  with  which  the  state  legislatures  are  often 
viewed  by  the  people  at  large.  Direct  legislation  has 
been  widely  endorsed  in  general  terms  by  various  polit- 
ical parties  and  associations,  especially  those  of  a  rad- 
ical or  progressive  stamp,  in  many  States.  As  long  ago  as 
1896,  the  Populist  Party  in  its  national  convention  at 
St.  Louis,  expressed  itself  in  favor  of  the  use  of  both  refer- 
endum and  initiative,  and  reasserted  its  advocacy  of 
direct  legislation  at  each  of  its  subsequent  conventions. 
Various  state  conventions  and  the  national  convention 

'  The  student  of  this  subject  may  consult  with  profit  the  Oregon 
Blue  Book  issued  annually  by  the  Secretary  of  State  of  Oregon. 
It  contains  an  interesting  analysis  of  the  popular  votes  taken  siaoo 
1902. 


THE  LEGISLATURE  181 

of  the  socialistic  and  radical  parties  have  put  them- 
selves on  record  in  favor  of  the  initiative  and  referendum. 
Certain  special  considerations  suggest  themselves  in 
regard  to  the  particular  form  of  direct  legislation  known 
as  the  "recall."  Expressed  in  general  terms  this  system 
means  that  all  persons  who  hold  oflEice  must  do  so  only 
so  long  as  their  tenure  of  office  is  sanctioned  by  the  will 
of  the  people;  at  any  time  when  a  majority  of  the  voters 
desire  it  the  office-holder  is  removed  from  his  functions. 
The  arguments  for  and  against  the  system  stand  upon 
somewhat  the  same  ground  as  those  in  regard  to  direct 
legislation.  In  idealistic  terms  it  is  argued  that  the 
will  of  the  people  ought  to  be  the  supreme  power  and 
that  the  recall  offers  a  means  whereby  the  citizens  may 
at  once  remove  from  office  those  who  have  abused 
their  trust.  The  system,  it  is  claimed,  affords  a  ready 
weapon  against  political  corruption  and  the  sinister 
influence  of  the  money  power.  To  this  it  is  answered, 
as  in  the  case  of  direct  legislation,  that  "the  people" 
are  neither  all-wise  nor  all-seeing;  that  the  recall  of  a 
conscientious  official  may  be  brought  about  by  a  false 
appeal  to  the  passions  or  interests  of  voters  ignorant 
of  the  facts  and  details  of  the  case;  that  the  resulting 
uncertainty  of  office  renders  the  conscientious  per- 
formance of  duty  doubly  difficult;  and  that,  far  from 
being  a  protection  against  the  malign  influence  of  the 
money  power,  the  recall  introduces  a  new  and  dangerous 
form  of  public  corruption.  It  is  especially  in  regard  to 
the  recall  of  judicial  officials  that  stress  is  laid  on  these 
arguments.  Here  the  practice  of  those  States  which  have 
introduced  the  recall  varies.  Some,  such  as  Oregon,  per- 
mit the  recall  of  judges.  Others,  as  Washington,  do  not. 
There  is  certainly  much  to  be  said  against  the  use  of  the 
recall  in  regard  to  judicial  office.  The  work  of  a  judge, 


182    THE  STRUCTURE  OF  THE  GOVERNMENT 

from  its  intricate  and  technical  character,  is  not  a  sub- 
ject upon  which  the  mass  of  the  people  can  pronounce. 
Certainty  of  tenure  alone  can  give  to  the  judge  the 
opportunity  for  independence  of  mind. 

READINGS  SUGGESTED 

Lecky.  W.  H.,  Democracy  and  Liberty  (1896),  vol,  i,  chap.  rv. 
Low,  S.,  Governance  of  England  (1904). 
Bryce,  J.,  American  Commonwealth  (1889),  vol.  i,  chaps,  i-xx. 
Miinro,  W.  B.  (editor),  Tlie  Iniliative,  Rejerendum,  and  Recall 
(1912),  chap.  I. 

FURTHER  AUTHORITIES 

The  Statesman's  Y ear-Book  (annual). 

Anson,  Sir  W.,  Law  and  Custom  of  the  Constitution,  part  i  (2d 

edition,  1896). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897). 
Poire tt,  E.,  The  Unreformed  House  of  Commons  (1903). 
Simonet,  Traits  Elementaire  du  Droit  Public  et  Administratif 

(3d  edition,  1897). 
Dicey,  A.  V.,  Law  of  the  Constitution  (4th  edition,  1893). 
Macy,  J.,  English  Constituiion  (1897). 
Vincent,  J.  M.,  Government  in  Switzerland  (1900). 
Wilson,  W.,  Congressional  Government  (2d  edition,  1901). 
Deploige,  S.,  The  Referendum  in  Switzerland  (translation,  1898). 
Ilbert,  Sir  Courtenay,  Legislative  Methods  and  Forms  (1901). 
Munro,  W.  B.,  The  Government  of  the  United  States  (1919). 
Temperley,  H.  W.  V.,  Senates  and  Upper  Chambers  (1910). 
Kimball,  E.,  The  National  Government  of  the  United  States 

(1920). 
Jones,  H.,  Liberalism  and  the  House  of  Lords  (1912). 
Bamett,  J.  D.,  The  Operation  of  the  Initiative,  Referendum,  and 

Recall  in  Oregon  (1915). 
Humphreys,  J.,  Proportional  Representation  (1911). 
Commons,  J.  R.,  Proportional  Representation  (1907), 


CHAPTER  m 
THE  EXECUTIVE 

1.  Concentration  of  authority  the  first  requisite  of  the  executive  — 
2.  Methods  of  appointment;  hereditary  executives  —  3.  Elective 
executives  —  4.  Presidential  and  parliamentary  government  — 
5.  Subordinate  officials  of  the  executive;  the  civil  service. 

I.  Concentration  of  authority  the  first  requisite  of  the 
executive.  The  term  "executive"  is  used  to  designate 
those  officers  of  the  government  whose  business  it  is 
to  "execute"  or  carry  out  the  law  of  the  land.  In  the 
narrower  sense  it  often  signifies  merely  the  supreme 
head  of  the  administration,  as  the  President  of  the 
United  States,  or  the  same  person  together  with  his 
chief  subordinates.  Thus  when  we  speak  of  the  "execu- 
tive" of  the  French  RepubUc,  we  refer  to  the  President, 
or  perhaps  to  the  President  together  with  the  prime 
minister  and  cabinet.  But  the  word  has  also  a  wider 
signification,  in  which  it  means  the  entire  staff  of  officials 
high  and  low,  who  are  concerned  with  the  administration 
of  public  affairs.  This  does  not,  of  course,  include  per- 
sons acting  in  a  legislative  or  judicial  capacity,  but 
comprises  all  such  public  servants  as  postmasters,  rev- 
enue officers,  sheriffs,  inspectors,  commissioners,  etc. 
Occasionally  even  the  army  and  the  navy  are  included 
in  this  usage  of  the  term.  In  the  following  chapter  the 
word  "executive"  will  be  used  in  the  narrower  sense 
except  where  otherwise  indicated. 

The  first  striking  point  to  be  noticed  in  connection 
with  the  executive  heads  of  modem  governments  is 
that,  while  members  of  the  legislature  are  many,  the 
chief  officers  of  the  executive  are  few.  This,  as  has  been 


184    THE  STRUCTURE  OF  THE  GOVERNMENT 

seen,  arises  from  the  fact  that  the  prime  need  in  the 
executive  or  acting  branch  of  a  government  is  prompt- 
ness of  decision  and  singleness  of  purpose.  That  this 
is  diflficult  to  obtain  among  a  number  of  persons  acting 
with  equal  authority  goes  without  saying.  "One  bad 
general,"  the  Emperor  Napoleon  once  said,  "is  better 
than  two  good  ones." 

It  is  further  to  be  noted  that  to  a  very  great  ex- 
tent executive  authority  —  either  over  the  whole  con- 
duct of  government  or  over  its  subdivisions  —  tends  to 
center  in  a  single  person.  Thus  in  the  United  States 
the  supreme  administration  lies  in  the  President,  whose 
chief  subordinates  are  his  own  creations,  and  can  be 
dismissed  by  him.  In  Great  Britain  the  virtual  control 
of  affairs  is  in  the  hands  of  a  cabinet  of  fifteen  to  twenty 
persons,  one  of  whom  is,  to  a  large  extent,  dominant 
over  the  others.  It  is  not  necessary  that  any  single 
person  should  always  impose  his  own  ideas  and  his  own 
will  upon  the  conduct  of  public  administration.  But  it 
is  essential  that  there  should  be  some  one  person  who 
can  in  the  last  resort  exercise  a  decisive  and  final  au- 
thority. It  is  one  of  the  admirable  points  in  the  federal 
Constitution  of  the  United  States  that,  by  virtue  of  his 
position  of  commander-in-chief  of  the  army  and  navy, 
the  President  may  become  in  time  of  war  almost  a  dic- 
tator. His  power  expands  with  the  need  of  strengthening 
the  executive,  and  he  is  able  to  cut  the  Gordian  knot  of 
legislative  perplexities  by  the  incisive  appUcation  of  a 
single  will.* 

It  appears,  then,  that  there  is  a  strong  presumption 
against  what  is  called  a  "plural  executive,"  or  group 

t  Consult  in  this  respect  J.  W.  Burgess,  Political  Science  and  Con- 
atitutional  Law,  vol.  ii,  division  in,  chap.  iv.  See  also  Everett  Kimball, 
The  National  Oovemment  of  the  United  States  (1920),  chape,  vui  and 
xvn. 


THE  EXECUTIVE  185 

of  persons  exercising  the  supreme  executive  authority, 
no  one  of  whom  is  superior  in  power  to  the  others. 
Such  a  body  is  able  to  act  only  by  joint  decision.  At 
first  sight  there  appears  a  decided  gain  in  this  system 
in  the  direction  of  maturity  of  judgment  and  mutual 
control  of  the  members  a^nst  any  possible  tyranny 
on  the  part  of  any  of  them.  But  the  necessary  loss  in 
promptness  of  resolution  and  the  danger  of  actual  con- 
flict of  opinion  in  a  moment  of  crisis,  more  than  offsets 
this  gain.  As  a  matter  of  fact  a  plural  executive  is 
scarcely  able  to  act  at  all  except  by  subdividing  the 
work  to  be  done  and  committing  certain  special  func- 
tions to  the  care  of  each  of  its  members.  This  was,  for 
example,  the  plan  pursued  by  the  Committee  of  Public 
Safety,  the  joint  executive  of  eleven  members  which 
governed  France  during  the  Reign  of  Terror,  1793-94.^ 
History  offers  many  examples  of  plural  executives,  such 
as  the  dual  kings  at  Sparta  and  the  consuls  at  Rome. 
But  experience  has  been  decidedly  imfavorable  to  such 
a  plan  of  government.  To  this  general  verdict  a  signal 
exception  is  found  in  the  case  of  modem  Switzerland. 
Here  the  supreme  executive  power  is  vested  in  a  board 
of  seven  persons,  the  Bundesrath,  or  federal  council, 
elected  for  a  term  of  three  years,  by  the  two  houses  of 
the  legislature  in  joint  session.  Although  one  of  the 
council  is  nominated  each  year  to  the  titular  dignity  of 
President  of  the  Swiss  Confederation,  he  is  in  no  sense 
above  the  others  in  authority.  The  members  act  sev- 
erally as  the  heads  of  the  seven  governmental  depart- 
ments, though  this  is  for  convenience  only,  and  not 
prescribed  by  the  constitution.    In  their   corporate 

*  For  the  division  of  executive  business  among  the  members  of  the 
Committee  of  Public  Safety,  see  Morse  Stephens,  The  French  Revohi^ 
tion,  vol.  u. 


186    THE  STRUCTURE  OF  THE  GOVERNMENT 

capacity  they  manage  the  general  conduct  of  the  ad- 
ministration. In  practice  the  system  works  admii-ably. 
The  members  of  the  council  are  constantly  reelected, 
and  enjoy  what  is  practically  a  permanent  tenure.  But 
this  rather  anomalous  situation  is  partly  to  be  explained 
by  the  fact  that  the  legislature  itself  decides  upon  the 
poHcy  to  be  pursued  in  all  matters  of  moment. 

2.  Methods  of  appointment;  hereditary  executives. 
Returning,  then,  to  the  consideration  of  modern  execu- 
tives in  general,  and  having  noted  the  prevailing  prin- 
ciple of  single  control,  we  may  next  indicate  the  great 
differences  that  exist  in  the  method  of  selecting  the 
executive  heads  of  governments,  in  their  tenure  of  office, 
and  in  the  relations  of  the  executive  to  the  legislative 
body.  Two  separate  lines  of  classification  are  here 
presented;  first  the  distinction  between  hereditary  and 
appointed  executives,  and  secondly  the  distinction  be- 
tween those  that  are  real  and  those  that  are  nominal. 
An  hereditary  executive  —  a  king,  emperor,  sovereign 
prince,  etc.  —  enjoys  a  tenure  which  is  not  only  lifelong, 
but  which  passes  to  his  heirs.  Such  an  institution  has 
of  course  no  place  among  the  political  ideas  current 
in  the  independent  states  of  the  American  continent. 
Looked  at  in  a  purely  rational  light,  it  is  difficult  to  find 
much  to  be  said  in  its  favor.  An  hereditary  ruler  seems 
on  the  face  of  things  as  absurd  as  the  hereditary  mathe- 
matician or  hereditary  poet-laureate  referred  to  in  the 
preceding  chapter.  But  hereditary  monarchy,  as  it  ex- 
ists in  Europe,  is  not  to  be  disposed  of  in  so  simple  a 
manner.  In  nearly  all  countries  where  it  exists,  it  is  an 
historical  product,  and  has  grown  up  as  a  part  of  the 
political  evolution  of  the  state.  In  many  cases,  too,  it 
is  regarded  by  the  people  of  the  country,  as  most  notably 
in  Great  Britain,  not  only  with  tolerance,  but  with  the 


THE  EXECUTIVE  187. 

most  sincere  approval.  The  desire  for  a  republican  form 
of  government  is  about  as  little  known  in  England  as  the 
desire  for  a  monarchical  system  in  the  United  States. 
But  the  real  secret  of  the  persistent  survival  of  hereditary- 
monarchy  in  so  many  of  the  civilized  communities  of  the 
world  lies  in  the  fact  that,  in  the  cases  where  it  meets 
with  the  greatest  approval,  the  hereditary  sovereign 
is  a  nominal  and  not  a  real  executive.^  In  the  United 
Kingdom,  Italy,  Belgium,  etc.,  the  actual  conduct  of 
government  is  not  in  the  hands  of  the  king.  The  king  is, 
to  a  great  extent,  though  of  course  not  hterally,  only  the 
nominal  head  of  the  state;  public  business  is  transacted 
in  his  name,  and  professedly  by  his  authority,  but  in 
reahty  the  control  of  affairs  is  in  the  hands  of  the  prime 
minister  and  cabinet,  who  represent  the  voice  of  the 
people.  In  this  form  the  system  can  be  supported  by 
many  arguments  of  great  weight.  It  helps  to  lend  to  the 
government  of  the  country  those  features  of  stability, 
permanence,  and  continuity  which  are  among  the  most 
essential  factors  in  political  institutions.  To  internation- 
al dealings  it  contributes,  whether  rightly  or  wrongly,  a 
certain  prestige  that  is  not  without  its  diplomatic  value. 
It  is  certainly,  also,  to  be  admitted  that  the  traditions 
which  surround  a  monarchy  of  long  continuance  help  to 
inspire  the  actual  chiefs  of  the  government  with  a  sense 
of  responsibihty  and  dignity  most  salutary  in  its  effect. 
In  spite  of  all  this  it  may  perhaps  be  doubted  whether 
the  wonders  of  constitutional  monarchy  have  not  been 
somewhat  overestimated  by  its  English  panegyrists. 
When  all  is  said  and  done  there  always  remains  a  con- 
tingent possibiUty  that  a  future  monarch  may  break 

*  A  very  interesting  discussion  of  the  somewhat  accidental  develop- 
ment of  the  peculiar  position  held  by  a  "  constituitional "  sovereign  is 
found  in  Sidney  Low's  Governance  of  England. 


188    THE  STRUCTURE  OF  THE  GOVERNMENT 

rudely  away  from  the  self-effacement  imposed  upon  him 
by  the  system.  The  admirable  manner  in  which  Queen 
Victoria  and  her  successors  have  filled  the  position  of 
constitutional  sovereign  has  made  people  forget  that 
this  self-effacement  is  customary,  and  not  part  of  the 
law  of  the  land.  The  relations  thus  established,  espe- 
cially in  the  connection  of  the  sovereign  with  foreign 
affairs,  are  extremely  delicate,  and  demand  for  their 
proper  maintenance  a  high  degree  of  tact  on  the  part  of 
the  monarch.  The  successful  operation  of  the  system  is 
by  no  means  so  independent  of  the  competence  or  in- 
competence, the  integrity  or  perversity  of  the  reigning 
prince  as  the  English  writers  are  inclined  to  imply. 
Whether  or  not  such  contingent  disadvantages  over- 
balance the  features  of  stability  and  continuity  that 
result  from  the  institution  of  monarchy  is  of  course  a 
subject  admitting  a  great  diversity  of  opinion. 

The  hereditary  monarchs  of  the  present  day  are 
nearly  all  of  the  constitutional  type.  The  former  King  of 
Prussia  (who  by  virtue  of  his  kingship  was  also  German 
Emperor)  was  an  example  to  the  contrary.  Here  the  con- 
stitutional maxim  that  the  king  "reigns  but  does  not 
govern  "  did  not  hold  true.  The  King  of  Prussia  not  only 
reigned  but  governed  also,^  and  his  executive  function 
was  both  titular  and  actual.  The  kingship  passed  to 
his  descendants.  To  the  American  mind  it  seems  very 
diflficult  to  defend  such  an  institution.  The  defense  on 
grounds  of  dynastic  rights  to  the  kingship  as  a  sort  of 
property,  or  on  quasi-theological  grounds  as  a  thing 
specially  instituted  by  the  Deity,  hardly  needs  refuta- 
tion. Any  defense  of  such  a  monarchy  on  the  grounds 

>  "With  us  the  Idng  himself  governs;  the  ministers  of  course  for- 
mulate (rediffiren)  what  the  king  has  commanded,  but  they  do  not 
govern. "  (Speech  at  PiiQce  Bismarck  in  the  German  Reichstag,  18S2.) 


THE  EXECUTIVE  189 

of  its  efficiency  carries  with  it  the  assumption  that  the 
future  sovereign  in  line  of  descent  will  of  necessity  prove 
efficient.  Nevertheless,  till  the  ignominious  fall  of  the 
Prussian  monarchy  in  1918  German  writers  on  pubUc 
law  were  quite  prepared  to  defend  the  existence  of 
monarchy  even  where  not  of  the  limited  or  constitu- 
tional type. 

3.  Elective  executives.  In  contrast  to  hereditary 
executives  may  be  placed  the  wide  class  of  those  that 
may  best  be  termed  "elective."  The  terminology  is  here 
hardly  satisfactory,  for  in  addition  to  officials  actually 
elected,  such  as  the  President  of  the  United  States, 
there  exists  a  class  of  head  executive  officers  who  are 
certainly  not  hereditary,  and  who  are  rather  to  be 
thought  of  as  selected  than  elected.  The  word  "nom- 
inated," or  "appointed,"  would  indicate  more  precisely 
the  method  of  their  accession  to  office.  Inasmuch,  how- 
ever, as  such  chief  executives  are  found  not  in  inde- 
pendent states,  but  in  the  subordinate  governments  of 
an  imperial  system,  it  would  seem  improper  to  make  on 
their  account  a  third  general  category  of  the  executive 
in  general.  Such  officials  as  the  Governor-General 
of  Canada,  the  Viceroy  of  India,  and  the  governors  of 
British  colonies,  all  of  whom  are  nominated  by  the 
crown,  are  of  this  description.  The  heutenant-governors 
of  the  Canadian  provinces,  who  are  appointed  by  the 
Governor-General,  on  the  advice  of  his  ministers,  belong 
to  the  same  class.  These  executive  officers  will  also  be 
divided  into  those  that  are  actual  and  those  that  are 
only  nominal.  The  Viceroy  of  India  is  of  the  first  sort; 
the  Canadian  Governor-General  is  of  the  second,  and  the 
lieutenant-governors  represent  only  the  thinnest  kind  of 
nominal  power.  Such  executives  are,  of  course,  merely 
the  outcome  of  the  peculiar  circumstances  of  the  British 


190    THE  STRUCTURE  OF  THE  GOVERNMENT 

Empire,  in  which  it  is  necessary  to  reproduce  by  proxy 
in  the  colonies  and  dependencies  the  nominal  character 
of  the  power  of  the  British  sovereign. 

Most  independent  states  that  are  not  under  an  hered- 
itary monarch  have  at  their  head  an  elected  executive 
chief.  Between  these  two  an  intermediate  form  might 
be  distinguished,  a  king  elected  for  life  out  of  a  "reign- 
ing family."  This  form  is  often  found  in  history,  as  for 
example  in  England  at  the  time  of  the  Norman  Conquest. 
It  belongs  to  an  age  when  the  king  was  in  the  full  sense 
of  the  term  the  "war  lord,"  and  when  military  prowess 
was  so  important  in  a  ruler  that  the  reign  of  a  minor 
or  a  weakUng  was  repugnant  to  the  general  sentiment 
of  the  nation.  But  among  the  elected  executives  of 
modern  civilized  states  such  a  form  no  longer  appears. 
The  actual  elected  executives  present  a  considerable 
diversity.  They  are  almost  all  alike  in  that  the  supreme 
power,  nominal  or  virtual,  is  vested  in  a  single  person, 
though  even  here  the  Swiss  executive  has  been  seen  to 
be  an  exception.  But  apart  from  this  many  divergen- 
cies appear.  In  the  first  place  the  manner  of  election 
is  various.  The  President  of  the  United  States  is  elected 
by  an  indirect  election,  which  through  the  purely  me- 
chanical nature  of  the  electoral  college  has  become 
practically  direct.  In  France  the  President  is  elected 
by  the  two  houses  of  the  legislature  sitting  together  as 
a  "national  assembly."  The  governors  of  the  separate 
commonwealths  of  the  United  States  are  elected  di- 
rectly by  the  people.  The  sj'^stem  of  election  varies  among 
the  republics  of  Central  and  South  America.  Some  of 
them,  as  Mexico,  the  Argentine  Republic,  and  Chili, 
choose  their  presidents  by  indirect  election.  In  others, 
as,  for  example,  in  Peru,  in  Brazil,  and  in  BoHvia,  the 
election  is  made  directly  by  the  people.  Theoretically 


THE  EXECUTIVE  191 

considered,  the  process  of  indirect  election  appears 
attractive.  While  not  inconsistent  with  the  principle  of 
popular  sovereignty,  it  appears  to  put  the  actual  choice 
of  the  executive  head  into  the  hands  of  a  specially  com- 
petent body.  Practical  experience,  however,  is  against 
the  plan;  it  is  found  either  to  convert  itseK  into  what  is 
merely  a  needlessly  cumbrous  form  of  direct  election,  or 
else  to  lend  itself  to  the  intrigue  and  sinister  influence 
of  an  inside  ring. 

Another  difficult  problem  presents  itself  in  the  matter 
of  the  duration  of  the  executive  term  of  office  and  in 
the  question  of  reeligibility.  In  all  democratic  repub- 
lican countries  there  is  an  instinctive  repugnance  to 
long  continuance  in  office,  and  a  fear  that  an  office  thus 
held  may  transform  itself  into  what  is  practically  a 
monarchical  tenure.  In  accordance  with  this  idea  the 
presidents  of  the  different  American  repubUcs  hold  office 
for  terms  varying  from  four  to  six  years.  For  the  same 
reason  the  outgoing  president  is  in  most  of  these  cases 
not  eligible  for  the  succeeding  term.  Mexico,  where  the 
President  is  reeligible  after  his  four  years  in  office,  and 
where  one  and  the  same  person  held  office  continually 
from  1884  to  1911,  is  here  an  exception.  In  the  United 
States  the  law  of  the  Constitution  does  not  prohibit  re- 
election. But  public  opinion  has  confirmed  the  prece- 
dent first  set  by  Washington,  and  forbids  the  election 
of  the  President  for  a  third  term.  That  such  a  rule  was 
a  salutary  precaution  at  the  inception  of  the  Republic 
was  doubtless  true.  At  the  close  of  the  eighteenth  cen- 
tury, a  repubhc  covering  any  considerable  territorial 
extent  was  regarded  as  an  experimental  departure  in 
poHtical  institutions.^  It  was  consequently  well  worth 

*  Montesquieu  (Esprit  des  Lois,  1748,  bk.  vni,  chap,  xvi)  says: 
"II  est  de  la  nature  d'une  r^publique  qu'elle  n'ait  qu'un  petit  terri- 


192    THE  STRUCTURE  OF  THE  GOVERNMENT 

while  to  make  special  sacrifices  to  avert  the  possibility 
of  the  subversion  of  republican  institutions  by  the  too 
great  dominance  of  a  single  person.  The  example  of 
Napoleon  Bonaparte,  who  found  means  to  convert  his 
consulship  for  ten  years  into  a  consulship  for  Hfe,  and 
then  into  an  imperial  rule,  illustrates  the  danger  which 
Washington  and  his  immediate  successors  were  anxious 
to  avoid.  But  it  may  well  be  doubted  whether  at  the 
present  time,  and  in  a  country  in  which  republican  in- 
stitutions have  been  consoUdated  by  more  than  a  hun- 
dred years  of  political  growth,  such  a  customary  regu- 
lation has  not  become  an  anachronism.  It  deprives  the 
country  of  the  services  of  its  greatest  pohtical  leader 
at  the  very  time  when  his  matured  experience  has  es- 
pecially fitted  him  for  his  post.  Certainly  in  England 
such  a  compulsory  retirement  of  men  like  Gladstone, 
Beaconsfield,  SaUsbury,  and  Lloyd  George  at  the  very 
zenith  of  their  political  career  would  be  considered  a 
national  loss.  In  France  the  President  is  elected  for 
seven  years  and  is  reeligible;  but  it  must  be  remembered 
that  in  this  instance  the  President  is  not  the  governing 
executive,  but  only  the  nominal  head  of  the  state.  The 
French  Republic  is  a  parliamentary  republic,  and  the 
executive  power  is  in  reality  held  by  the  prime  minister 
and  his  cabinet. 

4.  Presidential  and  parliamentary  government.  From 
what  has  been  said  it  will  be  seen  that  the  divisions 
of  executive  into  hereditary  and  elective,  nominal  and 
actual,  lie  crosswise  of  each  other.  An  hereditary  sover- 
eign may  be  nominal,  as  in  the  case  of  the  British  king, 
or  he  may  be  an  actual  ruler,  as  was  the  King  of  Prussia. 

toire:  sans  cela  elle  ne  peut  gufere  subsister."  The  reflections  which 
follow  on  the  political  dangers  of  a  large  republic  are  especially  inter- 
esting. See  also  Rousseau's  Social  Contrad. 


THE  EXECUTIVE  193 

Similarly  an  elected  executive  such  as  the  President  of 
the  United  States  is  actual,  while  the  President  of  the 
French  Republic  is  only  nominal.  The  distinction  be- 
tween nominal  and  virtual  executives  leads  to  the  con- 
sideration of  the  most  fundamental  of  all  questions  in 
regard  to  the  executive,  namely,  its  connection  with  the 
legislature.  This  has  already  been  referred  to  in  discuss- 
ing the  separation  of  powers,  but  some  further  treatment 
is  here  necessary.  The  governments  of  modern  states 
are  divided  between  two  rival  systems  of  operation.  Of 
these  the  one  is  commonly  termed  "parliamentary," 
"responsible,"  or  "cabinet"  government;  the  other, 
for  which  no  satisfactory  designation  can  be  found, 
has  been  variously  styled  "non-responsible,"  "presi- 
dential," or  "congressional"  government.  In  a  parlia- 
mentary government  the  tenure  of  office  of  the  virtual 
executive  is  dependent  on  the  will  of  the  legislature;  in 
a  presidential  government  the  tenure  of  office  of  the 
executive  is  independent  of  the  will  of  the  legislature. 
Parliamentary  government  is  always  found  in  connec- 
tion with  the  presence  of  a  nominal  executive.  But  it  is 
to  be  remembered  that  this  nominal  executive  need  not 
be  an  hereditary  titular  sovereign.  In  France  the  gov- 
ernment is  parliamentary,  but  the  nominal  head  of  the 
state  is  an  elected  officer.  Similarly  the  presidential  sys- 
tem is  always  found  in  connection  with  a  real  or  virtual 
executive;  but  this  real  executive  need  not  be  an  elected 
president,  as  the  instance  of  Prussia  clearly  shows.  It 
thus  seems  that  the  word  "  presidential "  is  somewhat  a 
misnomer,  since  a  presidential  government  may  not 
have  a  president,  and  a  country  which  has  a  president 
need  not  have  a  presidential  government.  Unfortu- 
nately, however,  no  more  adequate  terminology  can  be 
found;  "non-responsible"  carries  with  it  an  entirely 


194    THE  STRUCTURE  OF  THE  GOVERNMENT 

false  connotation,  and  "congressional"  has  already  an- 
other signification  in  allusion  to  the  Congress  of  the 
United  States. 

The  principle  of  parliamentary  government  is  best 
understood  by  studying  the  evolution  and  operation  of 
the  British  cabinet.^  The  King  of  England  was  never 
without  a  group  of  councilors  and  chief  officers  to  aid 
him  in  the  conduct  of  the  government.  These  advisers, 
known  in  Norman  times  as  the  King's  Ordinary  or 
Permanent  Council,  and  from  the  time  of  Henry  VI 
as  the  Privy  Council,  were  men  of  the  king's  own 
choice.  They  were  the  king's  "ministers"  in  the  literal 
sense  of  the  term.  Nor  were  they,  for  centuries  after 
the  consohdation  of  consultative  assemblies  into  a 
national  ParUament  (1295),  controlled  by  the  legisla- 
ture, except  by  the  heroic  remedy  of  impeachment. 
They  were  rather  the  natural  antagonists  of  the  Parlia- 
ment than  its  chosen  representatives.  This  is  particu- 
larly seen  during  the  tyranny  of  the  Stuarts,  where 
Sir  Thomas  Wentworth's  desertion  of  the  popular 
cause  elevated  him  to  the  position  of  a  minister  of  the 
crown.  Moreover,  the  group  of  ministers  who  formed 
the  King's  Council  constantly  showed  a  tendency  to 
unduly  increase  in  numbers.  This  led  to  the  concen- 
tration of  power  in  the  hands  of  an  inner  circle,  to 
whom  the  name  "cabinet"  came  to  be  applied.  The 
overthrow  of  the  Stuarts  and  the  recognition  of  the 
principle  of  the  supremacy  of  Parliament  by  the  Bill 
of  Rights  (and  later  by  the  Act  of  Settlement)  ren- 
dered the  previous  relation  of  ministers  and  Parliament 
no  longer  possible.   As  a  means  of  conducting  the  ex- 

*  For  the  operation  of  the  British  cabinet  system,  see  A.  L.  Lowell, 
The  Govemmenl  of  England  (1910),  vol.  i,  chaps,  u,  ui,  vni,  xvn,  xna^ 
zxu,  xxiu. 


THE  EXECUTIVE  195 

ecutive  government  with  the  support  of  the  members 
of  Parliament,  WiUiam  III,  acting  on  the  advice  of  the 
Earl  of  Sunderland,  deliberately  chose  his  ministers 
from  the  ranks  of  the  party  dominant  in  the  Commons. 
This,  if  ever  one  may  speak  with  propriety  of  a  political 
invention,  was  the  invention  of  the  cabinet  system  of 
government.  Yet  the  system  thus  instituted  remained 
for  nearly  a  century  in  a  rudimentary  and  imperfect 
state.  The  ministers  did  not  at  first  feel  called  upon  to 
resign  on  the  loss  of  parUamentary  support.  They  pre- 
ferred to  wait,  as  did  WilUam's  ministry  in  1698,  for 
the  adverse  majority  to  "blow  over."  Nor  did  the 
ministry  throughout  the  first  half  of  the  eighteenth 
century  resign  or  enter  ofl&ce  as  a  body.  Lord  Rocking- 
ham's cabinet  of  1765  may  be  looked  upon  as  the  first 
set  of  ministers  coming  into  office  as  a  body.  Even  till 
the  end  of  the  century  the  ministers,  though  they  might 
belong  to  the  same  party,  were  not  of  necessity  united 
in  pohcy  or  harmonious  in  their  poUtical  relations  with 
one  another.  Pitt's  insistence  on  the  resignation  of  his 
refractory  chancellor  Lord  Thurlow  (1792)  marks  the 
recognition  of  this  stage  of  cabinet  evolution;  the  re- 
fusal of  the  ministers  of  George  IV  to  give  him  indi- 
vidual advice  in  reference  to  a  matter  of  foreign  pohcy 
indicates  its  final  adoption.^ 

Taking  the  cabinet  as  it  now  exists,  it  may  be  said 
to  operate  on  the  following  plan:  It  consists  of  a  group 
of  about  twenty  men,  who,  though  not  legally  a  cor- 
porate unit,  have  in  practice  a  united  pohcy  and  a 
united  responsibility.  Each  of  them  is  a  member  of 
the  legislature,  either  of  the  Lords  or  of  the  Commons. 

*  The  development  of  cabinet  government  in  Great  Britain  is  traced 
in  Heam,  Government  of  England.  See  also  C.  Ransome,  Rise  of  Con- 
atUiUional  Governmeni. 


196    THE  STRUCTURE  OF  THE  GOVERNMENT 

They  are  nominated  by  the  crown,  acting  on  the  ad- 
vice of  one  of  their  number  whom  the  king  has  first 
selected  to  be  the  prime  minister.  They  belong  to  the 
poUtical  party  or  coalition  of  parties  which  commands 
the  support  of  the  House  of  Conmions.  Should  they 
lose  that  support  they  resign  collectively.  In  the  United 
Kingdom  the  whole  of  this  arrangement  is  customary, 
and  not  legal.  But  such  need  not  be  the  case.  In  France, 
for  example,  it  is  part  of  the  law  of  the  constitution  * 
that  "the  ministers  are  collectively  responsible  to  the 
chambers  for  the  general  policy  of  the  government." 
This  is  held  to  mean  that  they  must  resign  if  no  longer 
supported  by  the  Chamber  of  Deputies.^ 

To  this  relation  thus  existing  between  the  French  or 
British  executive  and  legislature,  the  presidential  sys- 
tem as  seen  in  the  United  States  or  Germany  stands 
in  complete  contrast.  In  the  United  States,  for  in- 
stance, the  President,  who  is  the  actual  executive,  is 
elected  independently  of  the  legislature,  for  a  term  of 
years  prescribed  by  the  Ck)nstitution.  Except  by  the 
process  of  impeachment,  the  legislature  cannot  shorten 
his  term  in  oflBce.  Nor  can  the  legislature  dictate  to 
the  President  the  poUtical  or  administrative  policy  to 
be  followed,  nor  control  it  in  any  direct  legal  way, 
excepting  in  so  far  as  the  Senate  has  a  veto  upon  the 
making  of  appointments  and  treaties.  Moreover,  the 
members  of  the  President's  "cabinet,"  as  the  group  of 
executive  officers  who  are  at  the  head  of  the  dififerent 
departments  is  commonly  called,  are  appointed  by  the 
President  himself.  There  is  no  obligation  upon  him  to 
consult  the  wishes  of  the  legislature  in  selecting  them. 

>  Loi  ConatitiUionnelle,  Feb.  25,  1875,  art.  6. 

»  The  extent  of  the  power  of  the  French  Senate  to  force  a  ministry 
out  of  oflSce  is  a  doubtful  constitutional  point.  DuprieZi  Lea  Miniatrea 
dana  lea  Principaux  Paya  d' Europe,  vol.  ii. 


THE  EXECUTIVE  197 

Nor  can  the  legislature,  except  in  the  last  resort,  by 
impeachment,  force  the  dismissal  of  members  of  the 
cabinet.  The  President,  on  the  other  hand,  can  appoint 
and  dismiss  them  at  will.  Similarly  under  the  former 
German  system  the  Emperor  had  an  actual  executive 
power.  His  official  acts,  indeed,  required  the  counter- 
signature of  his  chancellor,  but  the  latter  was  an  officer 
of  his  own  creation,  holding  office  during  the  Emperor's 
pleasure.^  There  was  no  power  on  the  part  of  the  legis- 
lature, by  an  adverse  vote  or  otherwise,  to  force  the 
resignation  of  the  chancellor.  The  same  relation  was 
found  in  the  government  of  the  Kingdom  of  Prussia. 

The  above  illustrations  show  what  different  purposes 
parliamentary  and  presidential  government  may  be 
made  to  serve.  In  Prussia  presidential  government 
permitted  of  the  existence  of  a  national  legislature,  the 
lower  house  of  which  is  democratic,  without  putting  an 
end  to  the  dominant  power  of  the  crown.  In  Great 
Britain  parliamentary  government  has  afforded  a  means 
of  compromise  whereby  the  monarch  retains  his  nomi- 
nal position  as  the  controlling  authority,  while  in  reality 
the  center  of  power  has  been  shifted  to  the  elected 
representatives  of  the  people.  In  France  and  the  United 
States,  on  the  other  hand,  the  parliamentary  and  the 
presidential  systems  have  been  each  deliberately 
adopted  as  the  best  means  of  putting  into  practice  the 
doctrine  of  popular  sovereignty. 

It  is  impossible  here  to  institute  a  detailed  criticism 
of  the  merits  of  the  two  systems.  In  England  the  par- 
liamentary system  plays  a  specially  useful  part  in  en- 
abUng  the  government  to  be  converted  into  a  democracy 

>  The  immediate  assifitants  of  the  imperial  chancellor  at  the  head 
of  the  different  departments  are  not  his  colleagues,  but  his  subordi- 
nates in  the  strict  sense  of  the  term. 


198    THE  STRUCTURE  OF  THE  GOVERNMENT 

without  breaking  with  the  historical  position  of  the 
crown.  The  same  purpose  has  been  effected  by  imita- 
tion in  Italy,  Spain,  and  other  countries.  The  King  of 
Sardinia  was  accepted  as  ruler  by  the  other  states  which 
were  joined  into  a  united  Italy  (1859-70)  by  virtue  of 
the  fact  that  the  governing  power  would  lie  with  the 
representatives  of  the  nation  at  large.  If  the  gradual 
abolition  of  monarchy  is  to  be  part  of  the  political  evo- 
lution of  the  future,  it  will  prove  to  have  been  effected 
by  means  of  the  parliamentary  system.  In  spite  of  all 
that  has  been  said  in  its  favor,  the  system  is  not  without 
its  drawbacks.  It  works  evenly  and  well  where  two 
great  political  parties  exist,  which  alternately  hold  the 
power  of  government  and  of  which  each  is  gradually 
forced  to  give  place  to  the  other.  But  where  not  one 
but  many  parties  exist  (as  in  France  and  Italy  at  the 
present  day),  loose  in  cohesion,  and  constantly  forming 
and  re-forming  into  new  coalitions,  it  introduces  a  dan- 
gerous element  of  instabihty  into  national  government, 
and  leads  to  the  sacrifice  of  principle  for  the  sake  of 
power.  On  the  other  hand,  the  presidential  system  has 
very*  decided  disadvantages.  The  office  of  chief  execu- 
tive becomes  of  so  great  importance  that  the  recurrent 
election  of  the  president  occasions  periods  of  great  ex- 
citement and  upheaval,  always  unfavorable  to  industrial 
activity  and  in  turbulent  countries  fraught  with  possi- 
biUties  of  revolution.  Moreover,  apart  from  the  artificial 
junction  effected  by  party  ties,  the  system  may  place  the 
executive  and  the  legislature  in  dangerous  antagonism, 
5.  Subordinate  officials  of  the  executive;  the  civil 
service.  It  has  been  said  at  the  opening  of  the  chapter 
that  the  term  "executive"  signifies  sometimes  the 
single  head  of  the  state,  sometimes  the  head  of  the  state 
together  with  his  chief  associates  or  subordinates,  and 


THE  EXECUTIVE  199 

at  times  the  entire  force  of  executive  officers,  high  and 
low.  The  subdivisions  of  the  executive  government  and 
the  relations  of  its  parts  among  themselves  must  con- 
sequently be  separately  considered.  A  distinction  ma3 
here  be  at  once  made  between  executive  bodies  that  are 
of  the  nature  of  a  hierarchy,  radiating  from  a  common 
source,  and  those  that  may  be  spoken  of  as  coordinate. 
In  a  purely  hierarchical  executive  the  whole  staff  of 
executive  officers  are  appointed  either  directly  or  in- 
directly by  the  chief  executive.  Of  this  type  is  the 
government  of  the  United  Kingdom,  in  which  appoint- 
ments flow  from  the  crown,  and  the  federal  government 
of  the  United  States,  whose  officers  are  appointed  either 
directly  by  the  President  or  indirectly  by  a  person  or 
persons  nominated  by  the  President.  The  same  is  true 
in  general  of  the  executive  officers  of  most  independent 
states.  On  the  other  hand,  the  commonwealths  of  the 
American  Union  have  coordinate  executives.  Here  the 
appointing  power  of  the  chief  officer  of  the  government 
(the  state  governor)  is  very  limited;  the  majority  of 
executive  officers  are  elected  to  their  positions  by  the 
people.  This  is  true  even  of  the  chief  officials  associ- 
ated with  the  governor  —  the  lieutenant-governor,  the 
secretary  of  state,  the  treasurer,  the  attorney-general, 
superintendent  of  education,  auditor,  comptroller,  etc. 
But  a  body  of  this  sort  is  still  properly  to  be  regarded  as 
a  unit  and  not  as  a  plural  executive,  since  the  whole 
staff  of  officials  is  under  the  supervision  and  to  some 
extent  under  the  control  (sometimes  by  power  of  dis- 
missal) of  the  executive  head  of  the  government.  More- 
over, the  departmental  heads  each  exercise  a  single  and 
not  a  collective  authority.  The  contrast  between  a  co- 
ordinate executive  and  a  hierarchical  is  extreme.  The 
former  works  well  enough  in  the  subordinate  govern- 


200    THE  STRUCTURE  OF  THE  GOVERNMENT 

ments  of  a  federal  system;  in  these,  especially  where 
th^e  is  an  elaborate  written  constitution,  executive 
duties  are  precise  and  there  is  but  Uttle  latitude  for 
general  policy.  But  in  a  national  government  the  case 
is  different;  here  there  is  need  for  a  central  power  of 
great  authority,  exercising  a  large  amount  of  adminis- 
trative discretion  and  able  to  rely  on  the  vigorous  co- 
operation of  harmonious  subordinates.  The  unity  of 
purpose  required  to  meet  a  sudden  and  serious  national 
emergency  could  hardly  be  foimd  in  a  cabinet  of  ex- 
ecutive officers  elected  singly  and  separately  by  the 
people. 

In  all  governments,  even  though  there  may  exist  one 
person  of  supreme  executive  power,  it  is  necessary  to 
divide  up  the  practical  conduct  of  the  administration 
into  a  number  of  departments.  The  division  adopted 
in  the  three  leading  governments  of  the  world  is  shown 
in  illustrative  form  in  the  table  at  the  end  of  the  present 
chapter.  It  will  be  seen  that  certain  great  departments 
of  business  —  the  management  of  foreign  affairs,  of  the 
army,  of  the  navy,  and  of  the  finances  —  are  common 
to  all.  The  American  Secretary  of  State  corresponds 
roughly  to  what  is  elsewhere  called  the  Secretary  or 
Minister  of  Foreign  Affairs.  The  names  of  most  of  the 
remaining  cabinet  officers  indicate  approximately  the 
functions  to  be  performed.  In  addition  to  the  usual 
officers,  each  country  finds  it  necessary  to  establish 
certain  special  departments  to  correspond  to  its  pe- 
culiar needs.  The  office  of  the  British  Colonial  Secretary 
and  that  of  the  Secretary  for  India  are  examples  of  this. 
In  "parliamentary"  governments,  too,  it  is  found  use- 
ful to  include  in  the  cabinet  group  several  officers  who 
have  either  no  departmental  duties  or  duties  of  only  a 
uominal  character,  and  are  thus  free  to  aid  in  the  gen- 


THE  EXECUTIVE  201 

eral  political  control.  In  Great  Britain  this  is  effected 
by  means  of  sinecure  offices  almost  free  from  actual 
administrative  duties,  such  as  the  positions  of  the  First 
Lord  of  the  Treasury  (generally  held  by  the  Premier), 
the  Lord  Privy  Seal,  the  Chancellor  of  the  Duchy  of 
Lancaster,  etc.  In  Italy,  Canada,  and  other  places,  the 
practice  is  adopted  of  admitting  to  the  cabinet  ministers 
"without  portfolio."  In  addition  to  these  offices  the 
exigencies  of  the  war  period  (1914-18)  occasioned  the 
creation  of  a  number  of  special  executive  departments, 
such  as,  in  France,  the  ministers  of  Liberated  Regions 
and  of  Industrial  Reconstruction,  and  in  Great  Britain 
the  office  of  Secretary  of  State  for  the  Air,  Minister  of 
Munitions  of  War,  Food  Controller,  etc.  Similarly  in 
the  United  States  the  necessities  of  the  war  period  led 
to  the  creation  of  such  special  bodies  as  the  Shipping 
Board,  the  Food  Administration,  etc. 

Below  these  heads  of  departments  and  principal  of- 
ficials comes  the  general  body  of  executive  officers  that 
form  what  is  called  the  civil  service.  The  relation  of  the 
members  of  the  civil  service  to  the  heads  of  the  gov- 
ernment, their  appointment,  dismissal,  and  tenure  of 
office,  is  one  of  the  difficult  problems  of  present  politics. 
It  will  be  well,  therefore,  briefly  to  indicate  the  existing 
status  and  regulation  of  the  civil  service  in  Great  Brit- 
ain and  the  United  States.  The  case  of  Great  Britain 
may  best  be  discussed  first. 

The  British  Civil  Service  in  the  period  before  the 
Great  War  comprised  a  staff  of  about  80,000  officials.^ 
This  includes  the  officers  of  the  royal  household,  a 
large  number  of  officials  connected  with  the  foreign, 
home,  and  colonial  offices,  the  admiralty,  the  treasury, 
etc.,  officials  serving  under  the  local  government  board, 

*  The  Dumber  was  greatly  increased  by  the  needs  of  the  war  period. 


202    THE  STRUCTURE  OF  THE  GOVERNMENT 

the  patent  office,  the  emigration  office,  the  diplomatic 
and  consxilar  corps,  collectors  of  customs  and  excise, 
postmasters,  etc.  The  fundamental  principle  in  the 
conduct  of  the  service  thus  constituted  is  perma» 
nence  in  office,  and  the  dissociation  of  tenure  of  office 
from  the  changes  of  government  caused  by  the  cabi- 
net system.  The  only  officers  of  a  political  complex- 
ion are  the  heads  of  the  departments,  together  with 
certain  chief  secretaries  and  assistants  who  are  known 
collectively  as  "the  ministry,"  and  who  number  in  all 
about  seventy-five  persons.  Thus,  for  example,  the 
Home  Secretary  (principal  secretary  of  state  for  home 
affairs)  has  as  his  subordinate  a  "  parUamentary  under- 
secretary," who,  like  himself,  is  a  member  of  the  min- 
istry, and  resigns  office  on  the  defeat  of  the  government. 
He  has  also  a  "permanent  under-secretary,"  who  is  not 
a  poUtical  officer,  and  who  is  at  the  head  of  the  standing 
staff  of  clerks,  superintendents,  inspectors,  and  other 
officials  of  the  department.  A  similar  plan,  though  the 
official  titles  vary,  is  in  use  in  various  other  departments 
of  the  government,  such  as  the  Foreign  Office,  the 
Colonial  Office,  the  Admiralty,  the  Ministry  of  Pen- 
sions, etc.  The  permanent  tenure  of  office  contributes 
greatly  to  the  efficiency  and  integrity  of  the  British 
civil  service.  Its  origin  is  to  be  traced  to  the  fact  that 
in  earUer  times  public  office  in  England^as  a  species  of 
real  property  held  by  the  incumbent  for  life  or  in  fee. 
There  still  exist  in  the  British  civil  service  a  few  offices 
which  are  held,  like  the  judicial  positions,  for  hfe  or 
good  conduct.  In  the  case  of  the  great  majority  of 
official  positions  in  the  civil  service  the  crown  retains 
the  right  of  dismissal.  This  right  is  exercised,  however, 
only  in  cases  of  incompetence  or  dereliction  of  duty, 
and  never  for  political  reasons  or  to  make  room  for  a 


THE  EXECUTIVE  203 

necessitous  office-seeker.  For  entry  into  the  service  use 
is  made,  in  most  of  the  British  departments,  of  the 
principle  of  open  competition. 

In  the  United  States  the  method  of  appointment  and 
dismissal  in  the  executive  branch  of  the  federal  govern- 
ment has  proved  a  matter  of  serious  national  concern. 
A  very  few  of  its  officers  hold  their  posts,  as  do  the 
federal  judiciary,  on  a  life  tenure.  Some  offices  —  as, 
for  example,  the  cabinet  positions — are  held  during  the 
pleasure  of  the  President.  But  in  the  case  of  the  great 
majority  of  positions,  the  appointment  is  made  for  a 
stated  term  of  years,  usually  four.  In  the  actual  oper- 
ation of  the  government,  the  difficulty  centers  around 
the  questions  of  dismissal  from  office  and  reappoint- 
ment at  the  expiration  of  the  statutory  term.  It  is 
clearly  to  be  desired  that  competent  officials  should  be 
left  undisturbed  in  their  positions,  whatever  be  their 
political  opinions.  Particularly  is  this  the  case  with 
such  positions  as  those  in  the  customs  service,  the 
postal  service,  etc.,  where  the  duties  to  be  performed 
are  of  a  more  or  less  routine  nature,  and  cannot  be  said 
to  depend  for  their  proper  performance  on  harmony  of 
political  opinion  between  the  head  of  the  department 
and  his  subordinates.  On  the  other  hand,  there  is 
always  the  fear  that  the  too  great  certainty  of  continu- 
ance in  office  may  lead  to  official  stagnation  and  a  per- 
functory discharge  of  duty.  The  Federal  Constitution 
is  not  explicit  on  the  subject  of  dismissal  from  office. 
The  extent  of  the  right  of  dismissal  is  reached  by  infer- 
ence from  the  constitutional  provisions  in  regard  to 
appointment,  and  from  the  obvious  exigencies  of  the 
case.  The  power  of  appointment  in  the  case  of  am- 
bassadors, other  public  ministers  and  consuls,  and 
judges  of  the  Supreme  Court,  lies  with  the  President, 


204    THE  STRUCTURE  OF  THE  GOVERNMENT 

subject  to  ratification  by  the  Senate;  but  "the  Con- 
gress may  by  law  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper  in  the  President  alone,  or 
in  the  courts  of  law,  or  in  the  heads  of  departments."  ^ 
Following  the  decision  of  the  courts,  the  power  of  dis- 
missal is  incident  to  the  power  of  appointment.  Con- 
gress, it  is  true,  during  its  conflict  with  President 
Johnson,  undertook  to  limit  the  executive  power  of 
removal  by  passing  the  Tenure  of  Office  Acts  (1867  and 
1869),  which  called  for  the  Senate's  ratification  of 
removal.  The  repeal  of  these  acts  (1887)  put  the  matter 
on  the  same  constitutional  footing  as  before. 

During  the  first  thirty  years  of  the  history  of  the 
Union  the  power  of  dismissal  was  not  used  as  a  means 
of  finding  positions  for  party  adherents.  Nearly  all  the 
federal  officials  held  office  during  the  pleasure  of  the 
executive,  and  dismissal,  except  for  cause,  was  not  con- 
templated. Madison  spoke  of  it  as  unconstitutional. 
The  Act  of  1820,  prescribing  a  four  years'  term  of  office 
(still  subject  to  removal  at  will)  for  collectors  of  cus- 
toms and  many  other  federal  officers,  offered  a  starting- 
point  for  a  new  system.  With  the  advent  of  President 
Jackson  (1829)  was  inaugurated  the  "spoils  system.'* 
Wholesale  removals  from  office  were  made,^  and  the 
places  thus  made  vacant  became  the  prizes  of  the  Presi- 
dent's pohtical  followers.  This  disastrous  precedent 
thus  estabUshed  was  followed  by  later  administrations, 
until  the  "clean  sweep"  of  offices  became  a  recurrent 
feature  of  American  poUtics.  Not  the  worst  feature  of 
the  system  has  been  the  frequent  incompetence  of  the 
persons  appointed  for  pohtical  reasons  to  the  vacant 
offices. 

I  Constitution,  art.  ii,  {  2. 

*  Id  the  first  twelve  months  of  his  presidency,  Jackson  made  734  re- 
movals from  federal  offices. 


THE  EXECUTIVE  205 

The  obvious  injustice  of  the  "spoils  system"  and  the 
inefficiency  thereby  occasioned  in  the  public  service 
led  to  a  movement  in  favor  of  civil  service  reform, 
which  culminated  in  the  Civil  Service  Act  of  1883.  The 
purpose  of  this  act  is  to  separate  as  far  as  possible  the 
civU  service  from  politics,  and  to  introduce  the  system 
of  appointments  by  merit  based  on  competitive  exam- 
inations. The  act  estabhshes  a  body  of  three  commis- 
sioners whose  duty  it  is,  at  the  request  of  the  President, 
to  aid  him  in  drawing  up  rules  directed  towards  the 
following  objects;  that  open  competitive  examinations 
shall  be  held  in  all  branches  of  the  civil  service  when 
classified  for  the  purpose,  and  that  appointments  to 
office  shall  be  made  from  those  applicants  graded  high- 
est; that  appointments  at  Washington  shall  be  ap- 
portioned among  the  States  according  to  population; 
that  no  person  in  the  public  service  shall  be  under  ob- 
ligation to  contribute  to  any  poUtical  fund,  nor  shall 
any  person  in  the  pubUc  service  use  his  authority  to 
coerce  the  poUtical  action  of  any  other  person.  The  act 
does  not  call  for  the  classification  of  persons  appointed 
by  the  President  and  ratified  by  the  Senate,  nor  of 
those  employed  merely  as  laborers.  There  are  also  a 
large  number  of  positions  which  are,  for  various  reasons, 
excepted  from  the  rules.  ^  Of  the  480,327  posts  in  the 
executive  civil  service  in  1916,  296,926  were  subject 
to  the  competitive  system.  It  is  evident  that  where 
new  appointments  can  be  made  only  on  a  basis  of 
certified  fitness,  the  tendency  deliberately  to  create 
vacancies  will  diminish,  and  competent  officials  will 
invariably  be  retained  in  office.  Not  the  least  merit  of 

*  For  the  peculiar  situation  that  arose  in  1913,  when  the  Democratic 
Party  returned  to  power  after  being  sixteen  years  out  of  office,  the 
student  may  consult  Everett  Kimball,  The  National  Government  0/  the 
United  States  (1920),  pp.  22S-29. 


206        STRUCTURE  OF  THE  GOVERNMENT 

the  Civil  Service  Act  is  that  it  helps  to  educate  opinion. 
It  is  only  by  the  growth  of  a  vigorous  public  feeling  in 
condemnation  of  the  spoils  system  that  the  evil  can  be 
eradicated. 

READINGS  SUGGESTED 

Taft,  W.  H.,  Our  Chief  Magistrate  and  his  Powers  (1915). 
Bodley,  J.  E.  C.,  France  (1898),  vol.  i,  bk.  n,  chap,  ii  ("The 

Chief  of  the  State"). 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897),  vol.  I,  chap.  ii. 
Dupriez,  Les  Ministres  dans  les  Principaux  Pays  d'Europe,  et 

d'Amerique  (1892),  vol.  i,  part  v,  vol.  n,  part  vi. 

FURTHER  AUTHORITIES 

Low,  S.,  Governance  of  England  (1904). 
Hart,  A.  B.,  Actvxil  Government  (1903). 
Ransome,  C,  Rise  of  Constitutional  Government  in  England 

(1883). 
Montesquieu,  Esprit  des  Lois  (1748). 
Moran,  T.  F.,  The  English  Government  (1903). 
Anson,  Sir  W.,  The  Law  and  Custom  of  the  Constitution,  part  I 

(1896). 
Ridges,  E.  W.,  Constitutional  Law  of  England  (1905). 
Stanwood,  E.,  History  of  the  Presidency  (1901). 
Reports  of  United  States  Civil  Service  Commission. 
Ford,  H.  L.,  Rise  and  Growth  of  American  Politics  (1900). 


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CHAPTER  IV 
THE  JUDICIARY  AND  THE  ELECTORATE 

1.  The  judicial  office  and  its  tenure  —  2.  The  relation  of  the  courts 
to  the  executive  and  to  the  legislature  —  3.  Administrative  law 
and  administrative  courts  —  4.  The  electorate:  evolution  of  uni-. 
versal  suffrage  in  leading  countries  —  5.  Representation  of  minori- 
ties. 

I.  The  judicial  office  and  its  tenure.  The  judicial 
branch  of  the  government,  though  less  numerous  than 
the  executive  (in  its  wider  sense),  occupies  a  position 
no  less  important  in  the  organization  of  the  state.  The 
prime  function  of  the  judiciary,  performed  in  all  states, 
is  to  decide  upon  the  application  of  the  existing  law  in 
individual  cases.  The  essential  requisite  in  a  judge  is 
consequently  an  exact  knowledge  of  the  law.  The 
work  of  the  judiciary  is  thus  a  highly  technical  function, 
demanding  for  its  proper  accomphshment  the  trained 
intellect  of  a  specialist.  Whether  the  law  is  right  or 
wrong,  just  or  imjust,  is  a  secondary  matter:  the  duty 
of  the  judge  is  to  adjudicate  upon  the  law  as  it  is,  and 
not  upon  the  law  as  it  ought  to  be.  It  is  far  better  that 
a  bad  law  should  work  injustice  in  an  individual  instance 
than  that  a  judge  by  deliberately  refusing  to  recognize 
it  should  impair  the  principle  of  law  itself. 

In  actual  fact,  however,  judicial  decisions  are  far 
more  than  merely  declaratory  in  their  nature;  they 
contain  a  constructive  element  and  serve  to  expand  the 
existing  law  into  a  more  and  more  detailed  interpreta- 
tion. For  no  statute  can  be  so  minute  in  its  provisions 
as  to  contemplate  all  possible  cases,  and  to  admit  al- 
ways of  only  one  construction.  Whether  the  letter  of  the 


THE  JUDICIARY  AND  THE  ELECTORATE    209 

law  is  silent,  the  judge  is  called  upon  to  attach  to  it  the 
meaning  which  maybe  considered  "reasonable";  that 
is  to  say,  which  is  consistent  with  the  general  principles 
of  moraUty  and  pubUc  poUcy.  In  countries  such  as 
England  and  the  United  States  this  principle  is  carried 
very  far;  for  here  the  decisions  once  given  are  viewed 
as  precedents  for  future  ones.  Such  precedents  are  not, 
of  course,  absolutely  binding,  but  the  presumption, 
where  identity  of  circumstances  can  be  established,  is 
vastly  in  their  favor. ^  The  process  of  adjudication 
thus  amounts  to  a  supplemental  form  of  legislation,  and 
a  large  part  of  existing  law  is  said  to  be  "made"  by  the 
judges. 

The  nature  of  judicial  functions,  viewed  in  this  Ught, 
clearly  demands  that  the  judiciary  must  be  as  impartial 
as  is  humanly  possible.  Not  only  must  their  own  pe- 
cuniary interests  be  unaffected  by  the  legal  decisions 
given  by  them,  but  they  must  be  removed  entirely  from 
the  play  of  pohtical  interests.  It  is  for  this  reason  that 
in  a  well-ordered  government  the  judiciary  should  be 
adequately  paid  by  a  compensation  not  affected  by  the 
number  and  nature  of  their  decisions,  and  should  enjoy 
permanent  tenure  of  office  and  be  independent  of  the 
good-will  or  ill-will  of  the  other  branches  of  the  govern- 
ment. This  object  is  adequately  effected  in  the  national 
government  of  the  United  States;  the  Constitution  (art. 
Ill,  §  1)  prescribes  that  "the  judges,  both  of  the  supreme 
and  the  inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for 
their  services  a  compensation  which  shall  not  be  dimin  • 
ished  during  their  continuance  in  office."  The  same 
is  true  in  the  case  of  Great  Britain.  The  English  judges 

>  For  a  brief  discussion  of  the  theory  of  precedents  see  P.  Vlno- 
gradoff,  Common  Sense  in  Law  (1914),  pp.  172-78. 


210    THE  STRUCTURE  OF  THE  GOVERNMENT 

until  the  close  of  the  seventeenth  century  held  their 
office  at  the  pleasure  of  the  crown,  a  position  obviously 
inconsistent  with  impartiality.  The  Act  of  Settlement 
(1701)  declares  that  "judges'  commissions  shall  be 
quamdiu  se  bene  gesserint,  and  their  salaries  ascertained 
and  estabhshed."  Removal  can  only  be  made  "upon 
the  address  of  both  houses  of  Parliament."  ^  The 
position  of  the  judiciary  thus  established  has  never 
been  altered.  The  system  has  also  been  adopted  in  the 
British  colonies.  The  permanent  and  independent  ten- 
ure of  the  judges  thus  secured  in  the  United  States  and 
in  the  British  Empire,  and  found  also  in  France,  and 
other  leading  countries,  is  unfortunately  not  universal. 
The  commonwealths  of  the  United  States  are  a  notable 
exception.  In  many  of  these  a  false  conception  of  the 
principle  of  popular  sovereignty,  and  the  vicious  influ- 
ence of  the  doctrine  of  "rotation  in  office"  have  led  to 
the  election  of  the  judges  by  the  people  for  a  stated 
term  of  years.  In  some  States,  it  is  true,  the  judges  are 
nominated  by  the  governor  or  elected  by  the  legislature; 
in  some  also  they  hold  oflBce  during  good  behavior.  But 
the  majority  of  judicial  positions  in  the  state  govern- 
ments are  held  by  election  for  a  stated  term,  often  as 
short  as  two  years.  Such  an  institution  cannot  be  too 
strongly  condemned.  It  exposes  the  judges  to  the  influ- 
ence of  poHtical  and  personal  motives  in  their  conduct 
on  the  bench,  impairs  the  impartiality  of  their  decisions, 
and  inevitably  lowers  the  character  of  the  judicial  body. 
The  situation  is  aggravated  when  the  judges,  as  is  the 
case  in  certain  States  of  the  Union,  are  made  subject  to 
"recall,"  that  is  to  say,  dismissal,  by  a  popular  vote.' 

>  Anson  describes  this  as  a  tenure  "as  regards  the  crown  during  good 
behavior,  as  regards  Parliament  at  pleasure."  It  ia  practically  a  per- 
manent tenure. 

*  See  above,  p.  181. 


THE  JUDICIARY  AND  THE  ELECTORATE    211 

2.  The  relation  of  the  courts  to  the  executive  and 
to  the  legislature.  Certainty  of  tenure  and  of  com- 
pensation guarantees  the  judiciary  against  being  un- 
duly controlled  by  the  other  branches  of  the  govern- 
ment. The  question  next  arises,  whether  and  to  what 
extent  the  officers  of  the  legislative  and  executive 
departments  are  to  be  protected  from  the  power  of 
the  judiciary.  That  their  original  appointment  or  elec- 
tion is  not  made  by  the  judiciary  goes  without  saying. 
But  it  must  be  further  decided  whether,  while  they  are 
in  office,  the  legaUty  of  their  official  acts  is  to  be  sub- 
ject to  the  decision  of  the  courts.  Shall  the  judges  have 
power  to  decide  whether  the  legislature  or  the  execu- 
tive, or  any  part  of  the  executive,  has  acted  in  excess  of 
its  lawful  power?  To  an  American  unacquainted  with 
foreign  governments,  the  answer  seems  self-evident, 
for  the  principle  of  limited  constitutional  powers  and 
responsibility  before  the  courts  lies  at  the  basis  of  the 
American  system.  But  on  this  most  important  point  of 
pubhc  law,  the  usage  of  modem  states  is  divided  between 
two  sharply  contrasted  systems.  In  the  United  States, 
the  Latin-American  republics,  Great  Britain  and  her 
colonies,  the  officers  of  the  government  are  responsible 
before  the  law  courts.  The  complete  legal  immunity  of 
the  British  sovereign,  and  the  immunity  (except  by  im- 
peachment) of  the  President  of  the  United  States,  are 
exceptions  of  a  special  nature  which  need  not  be  con- 
sidered in  this  connection.  On  the  other  hand,  it  is  the 
prevalent  usage  in  the  Continental  countries  of  Europe 
that  the  ordinary  courts  of  law  have  no  power  to  ques- 
tion the  legality  or  decide  as  to  the  constitutionality 
of  the  official  actions  of  the  legislative  and  executive 
officers.  A  closer  consideration  of  the  consequences  of 
these  antagonistic  principles  will  show  how  greatly  the 


212    THE  STRUCTURE  OF  THE  GOVERNMENT 

relations  of  the  government  to  the  individual  citizens  are 
affected  thereby. 

The  case  of  the  British  Empire  is  less  complicated 
and  may  be  treated  first.  In  the  United  Kingdom  every 
servant  of  the  state  (except  the  king)  is  responsible 
for  his  actions  before  the  ordinary  courts  of  law.  "Every 
official,"  says  Mr.  Dicey,^  "from  the  Prime  Minister 
down  to  a  constable  or  a  collector  of  taxes,  is  under  the 
same  responsibility  for  every  act  done  without  legal 
justification  as  any  other  citizen.  The  Reports  abound 
with  cases  in  which  officials  have  been  brought  before 
the  courts,  and  made,  in  their  personal  capacity,  liable 
to  punishment  or  to  the  payment  of  damages  for  acts 
done  in  their  official  character  but  in  excess  of  their  law- 
ful authority."  Not  only  the  members  of  the  executive 
civil  service,  but  the  officers  and  men  of  the  army  are 
individually  Hable  before  the  ordinary  tribunals  for  any 
unlawful  acts,  even  if  performed  at  the  command  of  a 
superior  officer.  ''The  position  of  a  soldier,"  says  the 
same  authority,  "may  be,  both  in  theory  and  practice,  a 
difficult  one.  He  may,  as  it  has  been  well  said,  be  Hable 
to  be  shot  by  a  coiui>-martial  if  he  disobeys  an  order, 
and  to  be  hanged  by  a  judge  and  jury  if  he  obeys  it." 
In  spite  of  the  apparent  anomaly  involved  in  the  last 
instance,  the  protection  afforded  to  individual  hberty 
by  this  responsibiUty  of  executive  officers  cannot  be 
overestimated.  In  the  case  of  the  British  legislature 
there  cannot,  of  course,  be  any  such  thing  as  a  statute 
made  in  excess  of  power.  For  since  the  Parhament 
(used  here  in  its  legal  sense  of  King,  Lords,  and  Com- 
mons) is  supreme,  every  statute  that  it  makes  is  legally 
a  good  statute  and  cannot  be  questioned  by  the  courts. 
But  the  legislative  enactments  of  any  minor  body  (such 

>  Laa  of  the  ConatittUion,  chap.  vi. 


THE  JUDICIARY  AND  THE  ELECTORATE    213 

as  a  county  council)  are  always  subject  to  be  passed 
upon  by  the  courts,  and  perhaps  set  aside  on  grounds 
of  illegality. 

It  is  in  such  countries  as  the  United  States  that  the 
principle  of  judicial  decision  on  the  validity  of  the  ac- 
tions of  the  government  has  the  greatest  consequences. 
Here,  as  in  England,  the  oflBcers  of  the  executive  are 
responsible  to  the  courts  for  their  official  actions.  But 
this  is  by  no  means  all.  For  since  the  national  and 
state  legislatures  are  given  by  the  Constitution  only 
a  certain  definite  and  Hmited  power,  it  becomes  the 
duty  of  the  courts  to  decide  whether  or  not  the  legis- 
lature in  the  making  of  any  statute  has  confined  itself 
to  the  powers  it  legally  possesses.  Where  such  is  not 
the  case,  the  court  (though  it  cannot  abolish  or  amend 
the  statute  itself)  can  refuse  to  apply  it  in  the  individual 
case  before  it,  which  is  in  practice  equivalent  to  declaring 
the  statute  invalid.  Americans  are  apt  to  regard  this 
power  of  the  courts  as  a  necessary  consequence  of  a 
written  constitution.  For  how  else,  it  might  be  asked, 
can  the  legislature  and  the  executive  be  duly  confined 
to  the  power  granted  them?  Logical  as  this  seems, 
it  remains  true,  as  will  presently  be  shown  in  the  cases 
of  France  and  Germany,  that  the  existence  of  a  written 
constitution  is  not  always  accompanied  by  this  re- 
visional  power  of  the  ordinary  courts  of  law.  That 
such  an  institution  should  have  grown  up  in  the  United 
States  is  one  of  the  most  feUcitous  features  of  American 
political  evolution.  The  germ  of  its  development  is 
found  under  the  colonial  governments,  from  which  in 
the  last  resort  appeal  might  be  taken  against  any  action 
of  the  legislature  or  executive  of  the  colony  to  the  king  in 
council.  The  written  charters  that  had  been  so  familiar 
in  colonial  history  and  still  existed  at  the  Revolution 


214    THE  STRUCTURE  OF  THE  GOVERNMENT 

in  Massachusetts,  Rhode  Island,  and  Connecticut,  pre- 
pared the  way  for  written  constitutions  limiting  the 
powers  of  the  organs  of  government.  The  severing  of 
the  connection  of  the  colonies  and  the  crown  rendered 
it  necessary  to  substitute  something  for  the  appellate 
jurisdiction  of  the  king  in  coimcil.  Even  before  the 
making  of  the  Federal  Constitution  (1787)  the  judiciary 
of  the  new  state  governments  had  begun  to  occupy  this 
field.  Several  decisions  of  state  tribunals  are  recorded  in 
which  acts  of  the  legislatures  are  declared  unconstitu- 
tional. In  the  report  of  a  Virginia  case  in  1782,  in  which 
this  point  was  raised,  it  is  stated  that  "  Chancellor  Blair 
with  the  rest  of  the  judges  was  of  the  opinion  that  the 
court  had  power  to  declare  any  resolution  of  the  legis- 
lature or  of  either  branch  of  it  unconstitutional  and 
void."i  The  Federal  Constitution  of  1787  did  not  m 
terms  lay  down  this  function  of  the  courts;  but  the 
proper  sanction  for  it  is  found  in  art.  iii,  §  2,  and  in  art. 
VI,  of  the  Constitution.  "The  Judicial  Power,"  it  is 
laid  down,  "  shall  extend  to  all  cases  . . .  arising  under 
this  Constitution."  Moreover,  "this  Constitution  and 
the  Laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof . . .  shall  be  the  supreme  Law  of  the 
Land:  and  the  judges  in  every  State  shall  be  bound 
thereby."  The  case  of  Marbury  v.  Madison  (1803),  in 
which  an  act  of  Congress  was  declared  unconstitutional, 
definitely  established  the  precedent  for  the  later  working 
of  the  national  government.  The  constitutional  relation 
thus  established  between  the  judiciary  and  the  other 
branches  is  not,  however,  unique  in  the  United  States. 
In  the  Dominion  of  Canada,  for  example,  the  judiciary 
exercise  an  analogous  power  in  their  interpretation  of 
the  British  North  America  Acts,  and  the  judges  under 

»  W.  W.  Willoughby,  Supreme  Court  of  the  United  States,  chap.  v. 


THE  JUDICIARY  AND  THE  ELECTORATE    215 

the  federal  system  of  the  Australian  commonwealth  are 
entrusted  with  a  similar  function. 

Widely  contrasted  with  the  relation  in  which  the 
American  courts  of  law  are  thus  seen  to  stand  as  re- 
gards the  Congress  and  the  officers  of  the  executive,  is 
the  position  occupied  by  the  courts  in  the  chief  Conti- 
nental countries  of  Europe.  The  latter,  as  we  have 
seen,  are  (with  the  exception  of  Hungary)  countries 
with  written  constitutions.  Yet  the  courts  of  law  are 
not  found  to  exercise  the  function  of  declaring  the  acta 
of  the  legislature  unconstitutional.  In  such  countries 
as  France  and  Italy  this  is  not  so  surprising,  for  these 
are  not  federal  governments,  and  the  constitution  in 
these  cases  is  concerned  only  with  the  organization 
of  the  government,  and  with  the  protection  of  individ- 
ual liberty,  and  not  with  the  division  of  legislative 
power  between  central  and  local  authorities.  As  a  con- 
sequence of  this  the  French  courts  do  not  question  the 
vaUdity  of  a  statute.  Conceivably  a  French  statute 
might  be  grossly  imconstitutional;  a  law,  for  instance, 
which  professed  to  abolish  the  republican  form  of  gov- 
ernment would  be  in  direct  violation  of  the  constitu- 
tion. But  in  practice  such  does  not  occur.  In  the  case 
of  the  former  German  Empire,  which  was  federal,  and 
which  had  a  written  constitution,  one  would  have  ex- 
pected to  find  the  courts  constantly  called  upon,  as 
in  the  United  States,  to  adjudicate  upon  the  con- 
stitutionaUty  of  state  and  federal  laws.  In  point  of 
fact  no  such  decisions  were  given.  Isolated  cases  oc- 
curred in  which  the  courts  (the  federal  as  well  as  state) 
declared  certain  statutes  of  the  minor  German  legisla- 
tures to  be  in  violation  of  the  state  constitution.  But 
the  legality  of  imperial  statutes  once  made  passed  un- 
questioned.  The  bulk  of  authority,  supported  by  the 


216    THE  STRUCTURE  OF  THE  GOVERNMENT 

declaration  of  the  Reichsgericht  (or  imperial  court)  it- 
self, was  in  favor  of  admitting  that  such  a  revisional 
power  existed.  Other  authorities  took  an  entirely  op- 
posite view.  Since  no  law  of  the  imperial  legislature 
went  into  force  until  officially  promulgated  by  the  Em- 
peror, these  writers  regarded  the  promulgation  as  itself 
supplying  the  necessary  test  of  constitutionality.  Be 
this  as  it  may,  the  fact  of  the  matter  remained  that  im- 
perial statutes  were  always  accepted  by  the  courts  as 
valid.  More  noteworthy  still  is  the  fact  that  in  the 
federal  republic  of  Switzerland  the  same  practice  pre- 
vails; indeed  it  is  a  provision  of  the  Swiss  constitution 
that  every  statute  passed  by  the  federal  assembly  must 
be  accepted  as  vahd.^ 

3.  Administrative  law  and  administrative  courts. 
But  the  absence  of  this  revising  power  of  the  courts 
is  not  the  only  point  in  which  Continental  practice 
is  at  variance  with  that  of  America.  The  whole  status 
of  executive  officers  before  the  law  is  different.  The 
principle  by  which  every  official  in  England  and 
America  is  responsible  to  the  courts  for  his  official  ac- 
tions does  not  apply.  On  the  Continent  this  form  of 
liability  is  replaced  by  the  regulations  and  procedure 
known  as  administrative  law.^  Under  this  system  public 
servants  acting  in  their  official  capacity  are  not  subject 
to  the  jurisdiction  of  the  ordinary  tribunals,  but  can 
only  be  called  to  account  before  the  administrative 

*  Constitution,  art.  113. 

*  The  term  "  administrative  law  "  has  more  than  one  sense;  as  used 
in  France  (droit  adminiatratif)  it  refers  not  only  to  the  law  covering 
the  relation  of  the  administrative  authorities  towards  private  citizens, 
but  also  to  the  whole  of  the  public  law  relating  to  the  organization  of 
the  state.  In  England  it  is  more  commonly  used  in  the  former  re- 
stricted sense.  For  the  operation  of  administrative  law  in  Continental 
Europe  the  student  may  consult  Simonet,  Traiti  EUmentaire  du  Droit 
Public  (1897),  and  Goodnow,  ComparoAive  Adminiatrative  Law  (1897). 


THE  JUDICIARY  AND  THE  ELECTORATE    217 

courts.  These  are  specially  constituted  bodies  composed 
for  the  most  part  of  members  of  the  executive.  In 
France,  for  example,  there  is  a  graded  service  of  ad- 
ministrative courts  which  exist  parallel  with  the  ordi- 
nary tribunals.  In  each  department  the  prefect  and 
his  prefectoral  council  (appointed  by  the  President)  act 
as  an  administrative  court.  Special  jurisdiction  is  exer- 
cised by  the  court  of  accounts,  councils  of  revision  (as 
to  military  recruiting),  colonial  courts  of  conflict,  and 
certain  councils  for  public  instruction.  Final  jurisdic- 
tion is  exercised  by  the  council  of  state,*  a  body  nom- 
inated by  the  President.  A  special  body  (the  tribunal  of 
conflicts),  made  up  of  equal  representation  from  the  two 
kinds  of  courts,  together  with  the  ministers  of  justice 
and  two  added  members,  decides  on  cases  of  disputed 
competence.  The  jurisdiction  of  administrative  courts 
over  official  actions  is  not  indeed  quite  without  ex- 
ception. "The  ordinary  courts  have  as  a  result  of 
statutory  provision  the  entire  control  of  the  matter  of 
expropriation  or  the  exercise  of  the  right  of  eminent 
domain.  Again,  arrests  made  by  the  administration  are 
under  the  control  of  the  ordinary  courts  as  a  result  of 
the  Penal  Code.  It  is  true  also  that  where  the  govern- 
ment or  a  department  of  the  government  becomes  a 
party  to  an  ordinary  commercial  contract  the  jurisdic- 
tion is  in  part  given  to  the  ordinary  courts."  ^  But  in 
the  main  the  statement  holds  good  that  in  France,  and 
in  the  European  Continental  countries  generally,  con- 
flicts between  individuals  and  the  administration  are 
settled  by  the  administration  itself. 

*  For  the  precise  composition  of  this  council,  which  is  partly  an  ad- 
visory executive  body  and  partly  a  judicial  tribunal,  consult  De  la  Eigne 
de  Villeneuve,  EUments  de  Droit  Constituiionnel  Frangaia,  part  i,  chap. 
Ui,  i  2,  art.  in. 

*  Goodnow,  Comparative  Administrative  Law. . 


218    THE  STRUCTURE  OF  THE  GOVERNMENT 

The  administrative  system  of  courts  originated  in 
France  with  the  extension  of  the  absolute  centraUzed 
monarchy,  which  tended  to  supplant  by  royal  officials 
the  older  local  tribunals.  The  Constituent  Assembly  of 
1789  expressly  adopted  the  principle  of  executive  courts 
for  passing  upon  the  acts  of  the  executive.  In  doing  this 
they  hoped  to  free  the  executive  from  being  unduly 
dependent  on  the  judicial  branch  of  the  government, 
and  found  the  warrant  for  their  action  in  the  familiar 
dogma  of  the  separation  of  powers.  "The  constitution 
will  be  equally  violated,  if  the  judiciary  may  inter- 
meddle with  administrative  matters  and  trouble  ad- 
ministrative officers  in  the  discharge  of  their  duties.  .  .  . 
Every  act  of  the  courts  of  justice  which  purports  to 
oppose  or  arrest  the  action  of  the  administration,  being 
unconstitutional,  shall  be  void  and  of  no  effect."  ^  The 
principle  thus  established  has  been  adopted  by  the 
successive  governments  that  have  ruled  over  France. 
Though  nominally  abolished  at  the  inception  of  the 
Third  Republic,  the  technical  interpretation  of  the 
decree  of  repeal  has  been  such  as  to  render  it  ineffectual 
in  practice.  Theoretically  dependent  on  the  principle  of 
distributed  powers,  it  has  really  commended  itself  as  a 
means  of  strengthening  the  hands  of  the  executive 
government.  Some  writers  have  indeed  sought  to  show 
that  the  administrative  courts  themselves  afford  a 
vaUd  protection  of  individual  Hberty.  But  the  bulk  of 
the  evidence  seems  to  prove  that  the  rights  of  the  in- 
dividual are  of  necessity  sacrificed  under  a  system  in 
which  the  executive  may  be  at  one  and  the  same  time 
the  aggressor  and  the  judge  of  the  aggression. 

4.  The  electorate:  evolution  of  universal  suffrage  in 

>  Instructioos  to  the  Law  of  Aug.  16-24,  1790.  Cited  by  Goodnow, 
op.  cU. 


THE  JUDICIARY  AND  THE  ELECTORATE    219 

leading  countries.  In  speaking  of  the  executive,  legis- 
lative, and  judicial  branches  of  government,  reference 
has  frequently  been  made  to  the  election  of  the  officials 
of  these  departments  by  the  people.  Let  us  therefore 
conclude  the  discussion  of  the  organs  of  government  by 
a  brief  treatment  of  the  electorate.  The  body  thus  desig- 
nated is  not  identical  with  the  whole  body  of  citizens. 
A  citizen  means  any  individual  member  of  a  state,  male 
or  female,  who  owes  it  allegiance  and  who  may  claim 
its  protection,  but  the  electorate  only  includes  those 
who,  under  the  suffrage  laws  of  that  particular  state, 
enjoy  the  right  to  vote.  The  electorate,  or  voters,  are 
sometimes  spoken  of  as  the  "pohtical  people,"  to  dis- 
tinguish them  from  those  who  have  no  direct  legal  share 
in  the  conduct  of  pubUc  affairs.  The  French  constitu- 
tion of  1791,  anxious  to  harmonize  the  principle  of  pop- 
ular sovereignty  with  a  very  restricted  suffrage,  spoke 
of  these  two  classes  as  "active  and  passive  citizens." 

The  right  of  the  general  body  of  the  people  to  vote 
for  representatives  to  govern  them  is  the  corner  stone 
of  the  free  institutions  of  Great  Britain  and  America. 
The  origin  of  this  representative  government  lies  hid- 
den at  the  very  beginnings  of  Anglo-Saxon  institutions. 
In  Saxon  England  we  find  every  township  sending  up 
an  elected  reeve  and  four  men  to  represent  it  in  the 
court,  or  general  meeting,  of  the  shire.  It  is  presumed 
that  in  such  early  elections  all  free  men  had  a  part.  But 
at  the  very  beginnings  of  parliamentary  government  in 
England  the  right  to  vote  tended  to  restrict  itself  to 
owners  of  land.  This  was  only  natural  in  a  country  hke 
England,  in  the  fifteenth  century,  where  wealth,  social 
standing,  and  ownership  of  land  were  almost  identical 
terms.  A  statute  of  Henry  VI  (1430)  limited  the  right 
to  vote  in  county  elections  to  residents  possessing  a 


220    THE  STRUCTURE  OF  THE  GOVERNMENT 

freehold  worth  forty  shillings  a  year.^  The  value  of 
money  having  changed  as  between  the  fifteenth  century 
and  the  opening  of  the  twentieth  in  a  ratio  of  at  least 
one  to  fifteen,  this  means  a  quite  high  property  quali- 
fication. Although  the  clause  requiring  residence  fell 
into  disuse,  this  statute  governed  the  franchise  in  the 
English  counties  for  four  hundred  years.  In  the  bor- 
oughs, too,  the  suffrage,  though  varying  greatly  from 
town  to  town,  rested  for  the  most  part  either  on  the 
possession  of  real  estate  or  the  payment  of  taxes.  Thus 
it  came  about  that  in  the  course  of  time  the  right  to 
vote  became  permanently  associated  with  the  holding 
of  property.  This  poUtical  fact  was  accompanied,  as  is 
usually  the  case,  by  an  explanatory  political  theory. 

The  property-owner  was  viewed  as  having  a  stake  in 
the  community,  and  his  vote  was  regarded  as  the  con- 
sequence, not  of  his  personal  citizenship,  but  of  his 
property.  In  the  American  States  in  the  early  years  of 
their  independence  this  theory  was  prevalent.  The  suf- 
frage, and  with  it  the  right  to  be  elected,  rested  on  quite 
restrictive  property  qualifications.  Even  in  Revolution- 
ary France  the  first  constitution  (1791)  included  among 
its  "active  citizens"  only  those  who  paid  annually  a 
"direct  tax  equal  at  least  to  the  value  of  three  days' 
labor." 

But  the  democratic  ideas  which  worked  themselves 
out  in  the  philosophy  of  the  eighteenth  century  and  in 
the  French  and  American  revolutions  gradually  led  to 
the  dominance  of  a  quite  different  view.  This  was  the 
principle  of  (so-called)  "universal  suffrage,"  of  the 
right  of  all  adult  capable  citizens  to  vote,  by  virtue  of 
their  being  such,  and  irrespective  of  the  holding  of 
property.  This  doctrine  was  proclaimed  by  the  Jaco- 

*  Aoson,  Law  and  Cuatom  of  the  Constitution,  pt.  i,  chap.  T,  sec.  ii,  f  1. 


THE  JUDICIARY  AND  THE  ELECTORATE    221 

bins,  or  extreme  republicans  among  the  French  revolu- 
tionists, though  even  among  these  only  a  minority  con- 
sidered that  women  should  share  in  this  "universal 
right."  *  The  influence  of  the  same  theory  was  seen  in 
America  in  the  early  part  of  the  nineteenth  century, 
when  the  States  abandoned  the  principle  of  a  property 
qualification,  and  moved  nearer  and  nearer  to  manhood 
suffrage.  In  England,  too,  where  abstract  poUtical  the- 
ories have  but  httle  weight,  the  practical  injustice  of  the 
restricted  franchise  led  to  the  long  agitation  culminat- 
ing in  the  Parliamentary  Reform  of  1832.  The  various 
governments  which  have  modeled  themselves  on  those 
of  Britain  and  the  United  States  have  adopted  also  the 
principle  of  universal  suffrage. 

In  the  democratic  countries  at  the  opening  of  the 
present  century  the  people  entitled  to  vote  represented 
a  fraction  of  the  population  ranging  from  one  fifth  down- 
wards. The  general  principle  was  that  of  the  admission 
to  the  polls  of  all  the  adult  male  citizens  of  mental  and 
moral  capacity.  The  principle  was  extremely  simple, 
and  in  some  states  was  appUed  to  the  whole  community 
by  a  single  and  comprehensive  law.  Thus,  for  example, 
in  France,  the  law  of  July  7,  1874,  granted  the  suffrage 
to  all  male  citizens  of  France  at  least  twenty-one  years 
of  age.  Similarly  the  right  to  vote  for  members  of  the 
German  Reichstag,  the  popular  house  of  the  imperial 
legislature,  was  granted  by  the  constitution  to  all  resi- 
dent male  citizens  of  the  German  Empire  who  had 
reached  the  age  of  twenty-five.^  This  is  the  situation 
which  still  obtains  (1920)  as  the  general  rule  in  Con- 
tinental  Europe.    But   in  the   English-speaking  de- 

*  For  the  question  of  female  suffrage  during  the  French  Revolution, 
Aulard,  Histoire  politiqxie  de  la  R6volutionfiranQaiae,  may  be  consulted. 

*  Conatiiution  o/  the  Empire,  art.  20. 


222    THE  STRUCTURE  OF  THE  GOVERNMENT 

mocracy  a  profound  alteration  has  taken  place  by  the . 
extension  of  the  suffrage  to  women.   This  may  be  re- 
garded as  among  the  most  striking  political  develop- 
ments of  the  twentieth  century. 

The  claim  of  women  to  vote  received  but  little  support 
in  the  earlier  phases  of  modem  democracy.  Even  the 
enthusiasts  of  the  American  and  French  revolutions  for 
the  most  part  took  for  granted  that  women's  "natural 
sphere"  lay  elsewhere  than  in  political  activity.  Only 
such  exceptional  groups  as  the  Cordeliers  of  the  French 
Revolution  or  such  isolated  writers  as  Mary  Wollstone- 
craf  t  ^  advocated  the  political  rights  of  women  and  their 
advocacy  attracted  but  httle  attention.  During  the  first 
half  of  the  nineteenth  century  the  subject  was  of  Uttle 
more  than  academic  importance.  But  the  result  of 
economic  changes  which  more  and  more  converted 
women  into  wage-workers  and  substituted  machine 
production  for  the  domestic  industry  of  the  home  was 
reflected  in  the  increasing  demand  for  poUtical  rights 
for  women.  John  Stuart  Mill's  book  {The  Subjection  of 
Women),  published  in  1869,  may  be  said  to  mark  an 
epoch.  The  right  to  vote  was  first  granted  in  newer 
commimities  such  as  certain  of  the  Western  States  (be- 
ginning with  Wyoming  in  1869),  and  in  Australasia.  By 
the  end  of  the  first  decade  of  the  twentieth  century  the 
issue  had  been  recognized  as  one  of  prime  importance. 
The  vexatious  tactics  of  the  "suffragettes"  overcame 
the  inertia  of  the  British  political  temperament.  The 
recognition  of  women's  work  in  the  war  afforded  a  pr^ 
text  for  the  dignified  retreat  of  previous  opponents. 
The  British  Franchise  Act  of  1918  and  the  amendment 
to  the  Constitution  of  the  United  States  described  be- 

*  See  Mary  Wollstonecraft,  Vindication  of  the  Rights  of  Women 
(1792). 


THE  JUDICIARY  AND  THE  ELECTORATE    223 

low  may  be  taken  as  indicating  the  definite  acceptance 
of  a  cardinal  principle  of  government  not  likely  to  be 
abandoned. 

In  the  light  of  these  changes  the  right  to  vote  as  it 
exists  in  Great  Britain  and  America  may  now  be 
treated  in  detail.  In  the  United  States  the  suffrage, 
though  extremely  democratic  both  in  principle  and 
practice,  is  extremely  complex  in  its  legal  details.  The 
Constitution  originally  left  the  matter  in  the  hands  of 
the  state  governments;  in  voting  for  members  of  the 
federal  House  of  Representatives,  the  voters  (Constitu- 
tion, art.  I,  §  2)  "in  each  State  shall  have  the  Qualifi- 
cations requisite  for  Electors  of  the  most  numerous 
Branch  of  the  State  Legislature."  To  this  is  to  be 
added  the  provision  of  the  Fifteenth  Amendment:  "The 
right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition 
of  servitude."  In  1919  a  further  amendment  was  pro- 
posed by  Congress  and  submitted  to  the  States  to  the 
effect  that  "the  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  sex."  Meantime  a 
large  number  of  States  (sixteen  by  the  end  of  1919)  had 
already  granted  full  suffrage  to  women  and  a  partial 
suffrage  existed  in  most  of  the  others.  The  suffrage  laws 
of  the  separate  States,  though  all  agree  in  excluding 
persons  under  twenty-one  years  of  age,  vary  very  much 
in  reference  to  qualifications.  Some  States  grant  the 
suffrage  to  aliens,  otherwise  quaUfied,  who  have  de- 
clared their  intention  to  become  citizens.  The  term  of 
necessary  residence  in  the  State  previous  to  voting 
varies  from  three  months  (Maine)  to  two  years  (Ala- 
bama and  others);  so  also  does  the  requisite  term  of 


224    THE  STRUCTURE  OF  THE  GOVERNMENT 

residence  (if  any)  in  county,  town,  or  precinct.  The 
general  list  of  exclusions  comprises  insane  persons, 
idiots,  and  felons.  Most  States  exclude  paupers,  and 
some  specifically  exclude  the  Chinese  (California,  Ne- 
vada, Oregon).  In  several  of  the  Southern  States  pe- 
cuHar  suffrage  laws  were  adopted  to  circumvent  the 
Fifteenth  Amendment  in  order  indirectly  to  prevent  the 
negroes  from  voting.  Thus  in  Louisiana  the  right  to 
vote  was  restricted  to  citizens  of  the  United  States  who 
were  able  to  read  and  write,  or  who  owned  three  hundred 
dollars'  worth  of  property  assessed  in  their  names,  or 
whose  fathers  or  grandfathers  were  entitled  to  vote  on 
January  1, 1867. 

'.  In  the  case  of  the  United  Kingdom  the  parliamen- 
tary franchise,  until  the  statute  of  1918,  was  of  the  most 
compUcated  character.  The  reason  for  this  is  that  Par- 
liament had  never  seen  fit  to  revise  the  existing  franchise 
at  a  single  stroke  and  to  repeal  all  previous  statutes  and 
substitute  for  them  a  single  and  uniform  suffrage  law. 
Instead  of  this  each  measure  of  parUamentary  reform 
only  partially  repealed  existing  legislation.  Three  great 
statutes  were  passed  in  the  nineteenth  century  in  exten- 
sion of  the  right  to  vote.  The  Reform  Act  of  1832 
widened  the  old  county  franchise  by  including  tenants 
as  well  as  owners  of  land,  and  gave  the  borough  fran- 
chise to  rate-paying  householders  occupying  premises 
worth  at  least  ten  pounds  a  year.  The  Reform  Act  of 
1867  further  extended  the  franchise.  Finally  the  Repre- 
sentation of  the  People  Act  of  1884  established  in  Eng- 
land and  Wales  both  in  towns  and  county  a  very  demo- 
cratic suffrage:  any  citizen  was  entitled  to  vote  who  was 
of  the  male  sex,  at  least  twenty-one  years  of  age; 
was  either  the  owner  or  the  lessee  of  land  or  premises  of 
a  certain  yearly  value,  the  sum  varying  according  to  the 


THE  JXJDICIARY  AND  THE  ELECTORATE    226 

nature  of  the  tenure;  or  else  occupied  or  was  a  lodger 
in  fixed  premises  of  a  certain  yearly  value,  or  on  which 
the  local  rates  had  been  paid.  The  qualifications  for 
the  parliamentary  franchise  in  Scotland  and  Ireland 
were  similar  to,  though  not  identical  with,  those  in 
England.  In  addition  to  this,  persons  might  be  qualified 
by  virtue  of  the  remnants  of  earlier  unrepealed  laws; 
they  might,  for  example,  be  voters  by  virtue  of  being 
born  and  resident  freemen  of  certain  towns,  or  hvery- 
men  of  one  of  the  city  companies  of  the  city  of  London, 
or  as  graduates  on  the  electoral  roll  of  Oxford,  Cam- 
bridge, Dublin,  or  London,  etc.  The  list  of  excluded 
persons  comprises  aliens  not  naturalized,  idiots,  con- 
victed felons,  and  members  of  the  peerage.^  The  complex 
historical  aspect  of  the  EngUsh  suffrage  and  its  prac- 
tically democratic  operation  is  highly  characteristic  of 
the  growth  of  Enghsh  political  constitutions.  Little  heed 
is  taken  of  the  logical  requirements  of  abstract  political 
theory  provided  that  the  practical  operation  is  not,  to 
an  appreciable  degree,  repugnant  to  the  demands  of  com- 
mon-sense justice.  The  growth  of  democratic  sentiment 
during  the  World  War  led  to  the  adoption  in  Great 
Britain  of  a  new  franchise  law,  the  Representation  of 
the  People  Act,  involving  great  changes.  All  men,  not 
disqualified  as  aliens,  conscientious  objectors  (five  years) 
etc.,  have  the  right  to  vote  if  twenty-one  years  of  age 
and  with  six  months  of  fixed  residence.  All  women,  not 
disqualified,  vote  who  are  thirty  years  of  age  and  either 
local  government  electors  or  the  wives  of  local  govern- 
ment electors.  A  bill  introduced  in  1920  to  lower  the 
age  limit  of  women  voters  to  twenty-one  failed  to  pass. 

*  For  further  information  the  student  may  consult  Sir  William  An- 
son, Law  and  Custom  of  the  Constitution,  and  A.  Lawrence  Lowell, 
OovemmerU  of  England,  chap.  ix. 


226    THE  STRUCTURE  OF  THE  GOVERNMENT 

The  right  of  women  to  vote  is  now  very  widely 
recognized  in  the  British  self-governing  Dominions. 
In  all  the  states  of  AustraUa  women  vote  both  in  state 
and  federal  elections.  In  New  Zealand  also  women 
possess  the  franchise  on  the  same  terms  as  men.  In 
Canada  women  have  the  right  to  vote  in  most  of  the 
nine  provinces,  including  the  fom*  western  provinces,  but 
not  in  Quebec.  Until  1917  the  right  to  vote  in  federal 
elections  in  Canada  was  confined  in  each  province  to 
the  voters  qualified  under  provincial  law.  The  federal 
government  under  the  British  North  America  Act  of 
1867  has  the  right  to  make  a  general  Dominion  fran- 
chise, but  has  preferred  (except  during  a  brief  period, 
1885  to  1898)  to  leave  the  matter  to  the  provinces. 
An  act  of  1917  allowed  certain  women  (wives  and 
mothers,  etc.,  of  soldiers)  to  vote  in  the  general  election 
of  that  year.  An  act  of  1919  gives  the  federal  vote  to 
all  quahfied  women. 

5.  Representation  of  minorities.  A  question  of  es- 
pecial interest  in  reference  to  voting  is  the  represen- 
tation of  minorities.  If  the  members  of  a  national 
legislature  were  all  elected  out  of  the  whole  community 
on  one  "general  ticket,"  —  each  voter  voting  as  many 
times  as  there  were  places  to  be  filled,  —  it  is  clear  that 
there  would  be  a  minority  group  of  voters  who  elected 
none  of  their  candidates.  So  glaring  an  illustration 
of  the  "unrepresented  minority"  does  not  in  practice 
occur.  The  need  of  representing  at  least  a  part  of  the 
people  in  each  district  naturally  leads  to  the  division  of 
the  whole  country  into  districts  from  each  of  which  a 
candidate,  or  a  group  of  candidates,  is  elected.  But  even 
with  such  a  division  into  districts,  a  number  of  the  peo- 
ple in  each  throw  away  their  votes  on  a  candidate  not 
elected  and  thus  remain  in  a  sense  unrepresented.  More- 


THE  JUDICIARY  AND  THE  ELECTORATE    227 

over,  under  such  a  system  an  elected  candidate  prac- 
tically always  receives  more  votes  than  the  mere 
majority  necessary  to  elect  him.  In  many  cases  this 
surplus  of  votes  is  very  large.  Where  party  candidates 
are  elected  district  by  district  it  may  well  happen  that 
the  candidates  elected  from  one  party  have  so  large  a 
surplus  of  unnecessary  votes  in  the  constituencies  that 
they  carry  that  their  representatives  may  poll  a  majority 
of  the  total  popular  vote  and  yet  be  in  a  minority  in 
the  legislature.  This  evil  may  be  aggravated  if  those 
in  power  so  divide  up  the  election  districts  as  to  make 
the  most  of  the  votes  of  the  adherents  of  their  own 
party  and  to  make  the  least  of  the  votes  of  their  op- 
ponents. This  is  the  process  known  as  gerrymander- 
ing, and  unfortunately  only  too  familiar  in  modern  poli- 
tics. At  times  it  is  effected  by  so  allotting  the  electoral 
districts  that  the  adverse  voters  will  be  too  few  every- 
where to  carry  any  district.  If  this  is  impossible  the 
districts  are  so  contrived  as  to  "bunch  together"  the 
hostile  voters,  and  thus  it  results  that  when  they  do 
carry  a  district,  they  carry  it  by  a  needlessly  large 
majority,  and  so  practically  lose  a  lot  of  voters. 

Much  attention  has  been  given  to  the  problem  of 
how  to  represent  the  minority,  and  various  schemes 
have  been  proposed  for  this  purpose,  and  to  some 
extent  adopted.  Of  these  a  few  may  be  mentioned. 
The  most  noteworthy  of  all,  historically,  is  the  scheme 
of  Mr.  Thomas  Hare,  which  attracted  considerable 
attention  in  England  in  the  middle  of  the  nineteenth 
century.^  This  was  the  plan  of  "self-made  constitu- 
encies." Instead  of  dividing  the  country  into  districts, 
it  was  proposed  that  any  candidate  should  be  elected 
for  whom  sufficient  votes  were  cast  anywhere  in  the 

'  Thomas  Hare,  The  Election  of  Representatives,  1859. 


228    THE  STRUCTURE  OF  THE  GOVERNMENT 

country.  The  number  required  was  to  be  found  by 
dividing  the  number  of  voters  by  the  number  of  seats 
in  Parliament  to  be  j&lled.  By  this  means  any  particular 
minority  group,  instead  of  being  scattered  in  district 
constituencies,  and  everywhere  swamped,  could  com- 
bine themselves  into  a  imited  vote.  The  scheme,  how- 
ever, demands  too  elaborate  a  pohtical  activity  on  the 
part  of  each  voter  to  be  at  all  practical.^ 

Another  method  of  minority  representation  is  the 
plan  of  "limited  voting."  This  can  be  used  whenever 
several  candidates  are  to  be  elected  to  form  a  board 
or  council;  it  would  not  apply  to  districts  where  only 
one  candidate  is  to  be  elected.  Each  voter  is  allowed 
to  vote,  not  for  as  many  candidates  as  there  are  places 
to  fill,  but  only  a  limited  number  of  times.  For  example, 
in  the  elections  to  a  city  council,  there  may  be  twelve 
places  to  fill,  but  each  voter  has  only  seven  votes.  The 
result  is  to  elect  seven  members  of  one  pohtical  party, 
and  five  of  the  other.  No  one  party  could  elect  all  un- 
less strong  enough  to  divide  its  adherents  into  two  dis- 
tinct voting  groups,  and  still  defeat  the  other  party. 
Such  a  system  meets  the  case  of  representing  a  second 
party,  but  may,  of  course,  leave  a  further  majority  un- 
represented. Similar  to  this  is  the  cumulative  vote.  In 
this  plan,  where  a  number  of  persons  are  to  be  elected, 
each  voter  may  vote  once  for  each  of  several  candidates 
or  give  all  his  votes  to  one.  Thus,  if  twelve  candidates 
had  to  be  chosen,  a  very  feeble  minority  could  get  a 
representative  if  each  person  gave  all  his  votes  to  the 
same  candidate. 

But  a  much  more  important  method  of  representing 
minorities  is  that  now  universally  advocated  and  al- 
ready widely  adopted  under  the  name  of  "proportional 

*  For  criticism  see  Bagehot,  Engliah  CotutittUion,  chap.  vi. 


THE  JUDICIARY  AND  THE  ELECTORATE    229 

representation."  ^  There  are  various  schemes  under 
this  general  class  all  based  on  the  original  proposals  of 
Thomas  Hare.  The  one  best  known  and  most  used  is 
that  of  the  "single  transferable  vote,"  sometimes  called 
also  the  "Hare  System"  or  the  "Hare-Spence  System" 
of  proportional  representation.  Its  basis  is  found  in 
the  election  of  members  of  a  legislature  or  council  not 
from  single-member  districts,  but  in  groups.  The  num- 
ber of  votes  necessary  to  elect  a  member  is  found  by 
the  simple  arithmetical  process  of  dividing  up  the  total 
number  of  voters  by  the  seats  to  be  filled.  Each  voter 
indicates  not  merely  his  first  choice  among  the  candi- 
dates, but  his  second,  third,  and  so  on.  In  counting  the 
votes  any  candidate  with  a  sufficient  number  of  first 
choice  votes  is  forthwith  declared  elected.  The  surplus 
of  his  first  choice  votes  is  divided  proportionately 
among  those  who  figure  as  second  choices  on  the  ballots 
on  which  he  was  first.  The  serious  limitation  of  such  a 
system  is  that  it  demands  multi-member  constituencies. 
In  many  communities  the  desire  to  have  a  small  area 
(a  town,  a  county,  etc.)  represented  as  such  mihtates 
against  the  introduction  of  the  system.  A  second  pro- 
posal  undertakes  to  meet  this  difficulty  by  the  plan  of 
the  "Alternative  Vote."  In  this  the  single-member 
constituency  is  used  by  the  voter  indicating  first,  second, 
etc.,  choices  of  candidates.  A  candidate  with  a  clear 
majority  of  first  choices  is  declared  elected.  Failing  such 
a  majority,  the  lowest  candidate  is  eliminated  and  the 
second  choices  on  his  ballots  turn  into  firsts,  and  so  on 
till  some  one  is  elected.  But  examination  will  show  that 
the  results  of  such  a  plan  do  not  go  very  far  in  repre- 
senting minorities. 

'  The  authority  here  par  excellence  is  John  R.  Htimphreys,  PropoT' 
tional  RepreaenkUion  (1911). 


230    THE  STRUprURE  OF  THE  GOVERNMENT 

Proportional  representation  under  the  single  trans- 
ferable vote  is  now  widely  used.  It  was  introduced  in 
Tasmania  in  1896.  In  South  Africa  it  was  introduced 
(1909)  for  the  election  of  the  senate.  It  was  applied  in 
New  Zealand  (1915)  to  the  election  of  thelegislative  coun- 
cil and  is  made  optional  in  cities.  It  has  been  introduced 
in  the  elections  to  the  legislature  of  New  South  Wales 
(1918)  and  in  the  city  of  Sydney.  It  is  widely  used  in 
municipal  elections  in  Ireland,  and  under  the  Represen- 
tation of  the  People  Act  of  1918  it  was  adopted  for  the 
University  constituencies  in  the  British  Parliamentary 
elections.  In  America  it  has  been  introduced  in  the 
election  of  city  councils,  as  in  Calgary,  Kalamazoo, 
Boulder,  and  various  cities  in  British  Columbia.  The 
method  of  proportional  representation  was  also  applied 
in  the  election  of  the  German  and  Austrian  National 
Constituent  Assemblies  in  1918,  and  is  used  in  the  par- 
liamentary elections  of  Holland,  Italy,  Sweden,  and 
Switzerland. 

READINGS  SUGGESTED 

Dicey,  A.  V.,  Law  of  the  Constitution  (4th  edition,  1893),  part 

II,  chap.  XII. 
Willoughby,  W.  W.,  The  Supreme  Court  of  the  United  States 

(1890),  chap.  V. 
Schouler,  J.,  Constitutional  Studies  (1897),  part  iii,  chap.  iv. 
Bradford,  G.,  The  Lesson  of  Popular  Government  (1899),  vol.  i, 

chap.  I. 

FURTHER  AUTHORITIES 

Von  Hoist,  H.,  Constitutional  Law  of  the  United  States  of 
America  (1887). 

Goodnow,  F.,  Comparative  Administrative  Law  (1897). 

Taswell-Langmead,  English  Constitutional  History  (5th  edi- 
tion, 1896). 


THE  JUDICIARY  AND  THE  ELECTORATE    231 

De  la  Bigne  de  Villeneuve,  EUments  de  Droit  Constitutionnel 

Frangais. 
Amdt,  A.,  Staatsrecht  des  DeiUscfien  Reiches  (1901). 
H61ie,  Les  Constitutions  de  la  France  (1880). 
Freeman,  E.  A.,  Comparative  Politics,  lecture  v  (1873). 
Stubbs,  W.,  ConstUutional  History  of  England  (4tli  edition, 

1883). 
Ridges,  E.  W.,  English  Constitutional  Law  (1905). 
Hare,  T.,  The  Election  of  Representatives  (1859). 
Walpole,  S.,  The  Electorate  and  the  Legislature  (1881). 
Mill,  J.  S.,  The  Subjection  of  Women  (1869). 
Mill,  J.  S.,  Representative  Government  (1875). 
Humphreys,  John  R.,  Proportional  Representation  (1911). 
Commons,  John  R.,  Proportional  Representation  (2d  edition, 

1907). 
Williams,  J.  F.,  The  Reform  of  Political  Representation  (1918). 


CHAPTER  V 
FEDERAL  GOVERNMENT 

1.  Importance  of  the  federal  principle;  its  historical  development  — 
2.  The  different  kinds  of  federations  —  3.  Sovereignty  in  a  federal 
state  —  4.  Utility  of  the  federal  principle  in  effecting  a  com- 
promise —  6.  Distribution  of  power  in  federal  states  —  6.  Ck)n- 
clusions. 

X.  Importance  of  the  federal  principle;  its  historical 
development.  The  subject  of  federal  government  is 
80  important  that  it  may  well  merit  a  separate  chapter. 
The  origin  and  growth  of  federation  and  the  purpose 
it  has  served  in  the  evolution  of  the  past  are  among 
the  most  interesting  topics  of  historical  study.  Of  the 
poUtical  problems  of  our  own  time  none  are  of  more 
vital  bearing  than  the  relation  of  the  local  and  central 
powers  in  a  federal  system.  In  the  development  of 
modem  states  the  principle  of  federation  has  played  a 
prominent  part.  It  has  suppUed  the  requisite  cohesive 
power  to  bind  together  the  commonwealths  that 
compose  the  United  States,  and  the  unequal  mon- 
archies and  free  cities  that  were  joined  into  the  German 
Empire.  Mexico,  Brazil,  and  Switzerland  are  federal 
republics.  The  British  Empire  is,  as  a  whole,  a  unitary 
state,  but  its  two  most  important  dependencies,  the 
Dominion  of  Canada  and  the  Commonwealth  of  Aus- 
tralia, are,  when  considered  separately,  federal  sys- 
tems closely  resembling  that  of  the  United  States.  As 
far  as  our  present  poUtical  vision  reaches,  it  seems  as  if 
any  attempt  to  create  a  universal  state  must  proceed 
along  the  hues  of  federation.  It  may  perhaps  be  rea- 
sonably thought  that  the  experience  now  being  gained 


FEDERAL  GOVERNMENT  233 

in  the  construction  of  composite  governments  on  a 
federal  plan  is  supplying  to  civilized  mankind  the  requi- 
site training  for  the  making  of  the  world  state  of  future 
ages. 

It  is  impossible  to  overestimate  the  important  part 
that  has  been  played  by  federation  in  the  history  of 
political  growth.  Speaking  broadly,  one  of  the  chief 
features  in  the  evolution  of  civilized  government  has 
been  the  extension  of  the  area  covered  by  a  single 
political  unit  or  state.  This  extension  has  not,  of  course, 
proceeded  always  in  a  continuous  chronological  course. 
Modern  Switzerland  is  but  a  diminutive  state  when 
compared  with  the  Roman  Empire.  Yet  it  is  true  in 
the  main  that  one  of  the  most  notable  and  most  essen- 
tial factors  of  political  progress  has  been  the  increasing 
size  of  the  territory  brought  into  a  single  state.  ^  To 
accompUsh  this,  two  great  historical  forces  have  been  at 
work.  Of  these  one  is  the  principle  of  conquest,  ab- 
sorption, and  expansion.  The  growth  of  the  French 
monarchy  and  the  spread  of  British  dominion  illustrate 
this.  The  other  has  been  the  principle  of  deliberate 
federal  union,  whereby  a  basis  of  compromise  is  af- 
forded permitting  the  political  junction  of  previous 
states  which  are  too  closely  connected  by  situation, 
language,  and  customs  to  remain  apart,  but  which  are 
too  unlike  in  area,  local  customs,  etc.,  to  permit  of  com- 
plete amalgamation.  Of  these  two  methods  the  one  is 
the  path  of  peace,  the  other  is  the  path  of  war.  No 
lasting  union  of  the  great  states  of  the  world  can  now 
be  expected  from  the  process  of  conquest.  If  united  at 
all  it  must  be  only  by  means  of  a  union  which  will  de- 
stroy neither  national  pride  nor  national  autonomy. 

In  its  broadest  sense  the  term  federation  indicates  any 

i  See  also  part  I,  chap,  ni,  above. 


234    THE  STRUCTURE  OF  THE  GMDVERNMENT 

form  of  union  entered  into  by  two  or  more  independent 
states.  Numerous  historical  examples  at  once  suggest 
themselves.  At  the  very  beginning  of  political  history 
we  have  the  famous  Achaean  League.  This  was  origi- 
nally a  defensive  alhance  of  twelve  cities  of  the  Pelopon- 
nesus, but  in  its  later  shape  as  revised  in  the  third  and 
second  centuries  (b.c.  281-146),  this  " after-growth  of 
Hellenic  freedom  "  assumed  a  more  elaborate  character. 
It  included  Corinth,  Megara,  and  many  other  important 
city-states  of  southern  Greece.  Each  city  retained  the 
control  of  its  own  internal  regulation,  but  sm-rendered 
into  the  hands  of  the  league  the  control  of  foreign  rela- 
tions and  war.  "There  was,"  says  Professor  Freeman,^ 
"an  Achaean  nation  with  a  national  assembly  ...  no 
single  city  could  of  its  own  authority  make  peace  or 
war."  Had  it  not  been  for  the  rise  of  the  world  power  of 
the  Roman  Empire,  such  a  league  might  have  supplied  a 
means  of  converting  the  Greek  city-state  into  a  territo- 
rial national  state.  In  later  history  the  short-Uved  com- 
binations of  Italian  cities  in  the  thirteenth  and  four- 
teenth centuries  may  perhaps  be  spoken  of  as  federa- 
tions. A  more  conspicuous  example  is  seen  in  the 
growth  of  modem  Switzerland.  Here  the  forest  dis- 
tricts of  Uri,  Schwyz,  and  Unterwalden,  still  nominally 
subject  to  the  Emperor,  banded  themselves  together  for 
protection  in  1291.  The  league  thus  formed  grew  in  ex- 
tent and  power.  Other  districts  and  the  free  cities  of 
Bern  and  Zurich  were  joined  to  it.  The  defeat  of  Austria 
in  the  end  of  the  fourteenth  century  gave  it  a  practi- 
cal independence,  which  was  finally  confirmed  by  the 
Treaty  of  Westphalia  (1648).  In  the  confederation 
thus  formed  each  member  retained  its  separate  inde- 
pendence, mutual  protection  being  the  only  purpose  of 

1  FroemaQ,  Federal  OovemrnerU. 


FEDERAL  GOVERNMENT  236 

the  union.  Though  for  a  time  amalgamated  by  the  in- 
terference of  the  French  Revolutionists  into  a  republic, 
"one  and  indivisible,"  it  was  not  until  the  changes 
effected  by  the  constitutions  of  the  nineteenth  century 
(1848  and  1874)  that  Switzerland  lost  the  appearance  of 
a  defensive  league  of  separate  states.^ 

A  similar  league  was  that  existing  between  the  inde- 
pendent States  of  North  America  under  the  Articles  of 
Confederation  (1781-89).  Here  each  State  was  a  sepa- 
rate body  politic.  The  only  form  of  common  control  was 
exercised  through  the  Congress,  a  body  of  delegates 
which  had  no  power  to  compel  the  States  to  its  will,  and 
no  power  to  command  or  to  tax  the  individual  citizens  of 
the  thirteen  States.  The  Federal  Constitution,  made  in! 
1787  and  put  in  force  in  1789,  estabUshed  in  the  place  of  J 
this  a  single  federal  state,  in  which  the  central  govern- 
ment was  brought  directly  in  contact  with  the  citizens/ 
The  course  of  the  nineteenth  century  has  witnessed  sev- 
eral federations  of  historical  importance.  Of  these,  the 
Swiss  constitutions  of  1848  and  1874,  the  federation  of 
the  provinces  of  Canada  into  the  Dominion  (1867),  the 
creation  of  the  North  German  Confederation  (1867) 
and  the  German  Empire  (1871),  together  with  the  feder- 
ation of  the  Commonwealth  of  Austraha  (1900),  are  the 
most  sahent  examples.  Other  countries,  too,  such  as 
Mexico  and  Brazil,  have  adopted  the  federal  system  of 
government,  not  as  a  means  of  increasing  their  area,  but 
as  a  method  of  harmonizing  local  and  national  interests. 

2.  The  different  kinds  of  federations.  When  we  con- 
sider the  various  forms  of  union  by  which  separate 
states  may  be  joined  together,  it  is  clear  that  they  pre- 
sent a  gi-aded  series  of  increasing  closeness.  At  one  end 
of  the  scale  is  the  offensive  and  defensive  alliance  en- 

*  Sidgwick,  Development  of  European  Polity,  lecture  zxix. 


236    THE  STRUCTURE  OF  THE  GOVERNMENT 

tered  into  by  sovereign  states.  Of  this  nature  was  the 
famous  Family  Compact  of  the  eighteenth  century,  be- 
tween the  Bourbon  monarchies  of  France  and  Spain. 
Such  a  union  is  extremely  illusory  in  its  nature,  as,  in 
the  absence  of  any  joint  organ  of  government,  it  has  no 
"sanction"  or  compelling  force  behind  it.  More  ad- 
vanced than  this  are  confederate  types  such  as  the 
Achaean  League,  the  German  Confederation  of  1815,  or 
the  Southern  Confederacy.  In  this  each  participant 
state  retains,  in  name  at  any  rate,  its  sovereign  charac- 
ter. It  may  happen  that  in  such  a  union  of  states  the 
formal  act  of  union  declares  itself  perpetual  and  at  the 
same  time  declares  that  each  state  retains  its  sover- 
eignty. This  is  quite  inconsistent,  for  it  implies  that 
each  state  is  free  to  leave  the  union,  and  at  the  same 
time  bound  to  remain  in  it.  Such,  however,  is  the  case 
with  the  American  Articles  of  Confederation  (in  force 
from  1781  till  1789)  and  the  constitution  of  the  Southern 
Confederacy.  Beyond  this  type  of  union  Hes  the  federa- 
tion par  excellence  —  the  federal  state,  ^  a  new  unit  com- 
posed out  of  previously  sovereign  states,  now  united  to 
form  a  new  sovereignty,  but  each  retaining  its  own 

i  political  sphere  independent  of  the  legal  power  of  the 
central  government.  Such  is  the  nature  of  the  present 
federal  union  of  the  United  States.  Beyond  this  again 
might  be  distinguished  what  could  be  called  an  amal- 
gamation, or  complete  fusion  by  agreement.  It  differs 
from  the  expansion  of  a  single  state  by  conquest  of  terri- 
tory, in  that  the  participant  members  enter  into  the 
amalgamation  or  amalgamated  state  of  their  own  free 

•  Some  writers  have  claimed  that  the  term  "federal  state"  is  not 
admissible,  on  the  ground  that  a  state  is  a  unity.  But  while  admitting 
that  it  is  illogical  to  speak  of  a  confederate  state,  it  seems  reasonable 
to  use  "federal  state"  to  mean  a  state  of  which  the  organization  is 
federal. 


FEDERAL  GOVERNMENT  237 

will.  The  best  examples  are  found  in  the  composition  of 
the  United  Kingdom  by  the  act  of  union  of  England  and 
Scotland  in  1707,  and  of  Great  Britain  with  Ireland  in 
1800.  These  unions  were  effected  by  similar  statutes 
passed  by  the  separate  parliaments  of  the  countries  con- 
cerned. The  unions  declared  themselves  to  be  made  on 
certain  stated  terms  and  conditions.  But  the  process 
differed  from  federation  in  that  in  each  case  the  parlia- 
ments which  made  the  unions  then  went  out  of  existence 
in  favor  of  a  new  parUament  which  was  legally  sover- 
eign, and  not  bound  by  the  conditions  of  union.  That 
this  is  more  than  a  theoretical  view  of  the  case  is  seen  in 
the  fact  that  the  British  Parliament  in  1869  abolished 
the  estabUshed  (Episcopal)  church  in  Ireland,  whose 
maintenance  was  one  of  the  express  terms  of  the  union 
of  1800.  A  similar  case  of  amalgamation  is  seen  in  the 
"  fusion  "  of  the  separate  ItaUan  states  mto  the  Kingdom 
of  Italy  (1859-60).  The  product  of  such  a  process  is  a 
unitary  and  not  a  federal  state. 

The  different  kinds  of  united  governments  thus  indi- 
cated have  afforded  ground  for  elaborate  classification 
of  the  various  species  of  confederacies  and  federal  states. 
This  has  particularly  interested  the  modern  German 
writers  on  public  law,  some  of  whom  distinguish  a  great 
many  subdivisions.  Such  classifications  have  been  un- 
dertaken by  Laband,^  Jellinek,'^  and  others.  JelUnek  dis- 
tinguishes, in  the  first  place,  virtual  unions,  such  as 
Canada  and  Australia  (legally  part  of  the  unitary  Brit- 
ish state)  and  legal  unions.  The  latter  he  subdivides 
into  (1)  protectorates,  etc.,  (2)  unions  of  a  superior  and 
inferior  state  (Staatenstaat),  seen  in  the  case  of  Turkey 
and  Egypt,'  (3)  monarchical  unions,  in  which  two  inde- 

>  StaaUrecht  des  Deutschen  Reichea, 

*  Daa  Recht  dea  Modemen  Staatea.         *  As  existioc  at  the  time. 


238    THE  STRUCTURE  OF  THE  GOVERNMENT 

pendent  states  are  joined  under  a  common  sovereign, 
this  again  being  subdivided  into  real  and  personal,  ac- 
cording to  whether  the  union  is  organic  and  dehberate 
(Sweden  and  Norway,  before  1905)  or  accidental  (Eng- 
land formerly  with  Hanover),  (4)  the  confederacy 
(Staatenbund),  and  (5)  the  federal  state  (Bundesstaat). 
Other  classifications  are  still  more  minute.  Of  all  these 
fluctuating  subdivisions  American  and  English  writers 
are  generally  inclined  to  throw  aside  everything  except 
the  distinction  between  a  confederacy  and  a  federal 
state.  This  is  a  vital  point  in  public  law  and  requires 
some  explanation.  A  confederacy  is  not  a  single  state. 
It  is  a  collection  of  independent  sovereign  bodies  united 
on  stated  terms  for  certain  purposes.  Each  of  them  is, 
legally,  free  to  withdraw  from  the  confederacy  when  it 
pleases.  A  confederacy  cannot  therefore  be  permanent 
and  indissolvable,  for  if  it  were  so  then  the  sovereignty 
of  the  component  states  would  disappear.  A  federal 
state  is  a  single  state.  Its  subordinate  parts  may  have 
been,  though  not  of  necessity,^  sovereign  states  previous 
to  the  union;  they  cannot  be  so  after  the  formation  of 
the  federation.  Such  a  union  becomes,  legally,  indis- 
solvable so  far  as  the  action  of  the  separate  state  govern- 
ments, or  of  the  central  government,  is  concerned.  It 
could  only  be  dissolved  by  the  constitutional  amending 
process,  where  such  exists.  The  interpretation  put  on 
the  Constitution  of  the  United  States  by  the  seceding 
States  of  the  South  would  have  made  it  a  confederacy. 
The  interpretation  put  upon  it  in  the  North  made  it  a 
federal  state. 
3.  Sovereignty  in  a  federal  state.  This  leads  at  once 

>  Compare  the  case  of  the  Republic  of  Brazil;  the  constitution  of 
1891  puta  the  provinces  on  a  federal  basLs,  but  they  were  not  previously 
independent  states. 


FEDERAL  GOVERNMENT  239 

to  the  much-disputed  question  of  the  sovereignty  in  a 
federal  state.  Around  this  centered  the  great  secession 
issue  between  the  Northern  and  Southern  States,  for  the 
retention  by  a  component  state  of  its  sovereign  power 
carries  with  it,  of  course,  the  right  to  withdraw  from 
a  federation  of  which  it  is  a  part.  Let  us  consider  the 
question  first  of  all  apart  from  the  particular  case  of  the 
United  States.  If  what  has  been  said  above  is  correct,  it 
follows,  by  definition,  that  the  creation  of  a  federal  state 
annihilates  the  sovereignty  of  the  component  states  — 
not  limits  it  or  divides  it,  but  annihilates  it.  For  sover- 
eignty either  is  or  is  not.  But  in  the  new  state  the  sover- 
eignty does  not  Ue  in  the  central  government;  it  Ues  in 
the  body,  wherever  and  whatever  it  may  be,  which  has 
power  to  amend  the  constitution.  Legally  speaking, 
this  sovereign  body  can  entirely  abohsh  the  federation 
and  restore  each  member  of  it  to  its  original  independ- 
ence. This  is  not  the  same  as  secession,  but  it  carries 
with  it  the  consequence  that  such  a  union  is  not  legally 
indissolvable.  In  a  confederacy,  on  the  other  hand,  each 
state  is  still  a  sovereign  state.  There  is  properly  no  con- 
federate law.  Any  common  regulations  adopted  by  a 
central  body  of  the  confederacy,  and  binding  on  the 
citizens  of  all  the  states,  are  law  to  any  such  citizen  be- 
cause adopted  as  law  by  his  own  state.  Where  law 
exists,  a  state  exists.  Where  a  state  exists,  then  it  has 
sovereign  power.  It  follows  then  that  confederacy  and 
secession  are  one  and  the  same  term  in  point  of  pubUc 
law.  In  actual  fact  secession  resolves  itself  into  a  ques- 
tion of  force.  Switzerland  was  an  acknowledged  con- 
federacy from  1815  until  1848.  Yet  when  the  seven 
Roman  CathoUc  cantons  undertook  to  secede  from  it 
(1847)  they  were  forced  back  into  the  confederation  at 
the  point  of  the  sword. 


240    THE  STRUCTURE  OF  THE  GOVERNMENT 

In  the  United  States  the  controversy  did  not  turn  on 
the  difference  between  a  confederacy  and  a  federal  state. 
It  turned  on  the  question  whether  the  United  States  was 
the  one  or  the  other.  On  this  point,  as  Professor  Gold- 
win  Smith  has  said,  the  "Constitution  proved  itself  a 
'Delphic  oracle.'"  The  language  of  the  Constitution, 
especially  when  read  in  the  light  of  the  antecedent  his- 
tory of  the  Confederacy  of  1781-89  (which  was  virtually 
dissolved  by  the  "secession"  of  eleven  of  its  thirteen 
states  0)  admitted  of  either  interpretation.  But  apart 
from  the  question  of  secession,  many  American  writers, 
while  admitting  the  federal  union  to  be  permanent,  have 
taken  quite  a  different  view  of  sovereignty  from  the  one 
here  indicated.  This  is  the  theory  of  dual  or  divided 
sovereignty.  In  accordance  with  this  view  the  sovereign 
power  in  a  federal  union,  such  as  the  American  Repub- 
lic, is  not  located  in  any  single  authority,  but  is  divided 
or  distributed  between  the  federal  and  the  state  govern- 
ment. Such  a  theory  is,  of  course,  totally  at  variance 
with  the  whole  conception  of  sovereignty  explained  in 
an  earlier  chapter.  It  is  difficult  to  regard  it  as  anything 
else  than  a  confusion  of  sovereignty,  which  is  complete 
and  absolute,  with  constitutional  power,  which  may  be 
of  any  degree  of  limitation.  If  the  federal  and  state  gov- 
ernments represent  a  "division  of  sovereignty,"  then 
the  three  branches  of  the  federal  government  represent 
a  further  subdivision,  and  so  forth.  In  spite,  however,  of 
its  inconsistency,  the  theory  of  dual  sovereignty  has 
foimd  illustrious  champions.  President  Madison  de- 
voutly beUeved  in  it.    "It  is  difficult,"  he  wrote,  "to 

»  When  the  Constitution  went  into  force  (March  4, 1789)  two  States, 
Hhode  Island  and  North  Carolina,  were  not  as  yet  in  the  Union.  They 
were  certainly  no  longer  in  the  Confederation,  which  had  ceased  to  exist. 
Yet  the  articles  had  declared  that  "the  Union  shall  be  i>erpetual" 
(art.  13;. 


FEDERAL  GOVERNMENT  241 

argue  intelligibly  concerning  the  compound  system  of 
government  in  the  United  States  without  admitting  the 
divisibility  of  sovereignty."  The  American  courts  of  the 
same  period  declared,  "  The  United  States  are  sovereign 
as  to  all  the  powers  of  government  actually  surrendered. 
Each  State  in  the  Union  is  sovereign  as  to  all  the  powers 
reserved."  ^ 

4.  Utility  of  the  federal  principle  in  effecting  a  com- 
promise. Returning  from  the  question  of  the  location  of 
sovereignty  to  the  general  aspect  of  the  federal  state,  it 
may  be  noted  that  the  peculiar  utiUty  of  the  federal 
principle  in  political  construction  lies  in  the  spirit  of 
compromise  which  it  embodies.  Every  small  community 
or  state  is  driven  by  the  need  of  protection  to  seek  for  a 
union  with  its  fellows.  But  a  form  of  association  which 
annihilates  its  own  traditions  of  independent  self-gov- 
ernment naturally  runs  counter  to  the  sympathies  of  its 
citizens.  Still  more  is  this  the  case  if  the  communities  to 
be  united  are  of  unequal  magnitude.  In  this  case  a  com- 
plete amalgamation  into  a  unitary  state  would  practi- 
cally mean  the  absorption  of  the  minor  States  into  the 
large  ones.  The  position  of  New  Jersey,  Delaware,  and 
Connecticut  at  the  time  of  the  making  of  the  Constitu- 
tion was  of  this  sort.  Still  more  unequal  was  the  federa- 
tion long  contemplated  among  the  German  states,  and 
finally  accomplished  by  the  formation  of  the  federal  em- 
pire in  1871.  The  principality  of  Schaumberg-Lippe  had 
then  an  area  of  212  square  miles,  and  a  population  of 
about  31,186  persons;  the  Kingdom  of  Prussia  had  an 
area  of  nearly  137,066  square  miles  and  a  population  of 
24,106,847.  In  all  such  cases  as  this  the  federal  system 

•  For  the  subject  of  sovereignty  under  the  American  constitution, 
the  student  may  consult  Merriam,  History  of  the  Theory  of  Sovereionty 
aince  Rouaaeau,  from  which  the  above  quotations  are  taken. 


242    THE  STRUCTURE  OF  THE  GOVERNMENT 

supplies  the  means  of  creating  a  single  state,  combining 
the  whole  powers  of  its  members  for  international  de- 
fense and  for  matters  of  general  interest,  without  sacri- 
ficing the  individual  Ufe  and  political  susceptibilities  of 
the  component  parts.  Even  among  "states"  of  relative 
equality,  as  in  the  case  of  the  majority  of  the  forty-five 
States  of  the  Union,  the  federal  system  has  the  advan- 
tage of  permitting  the  legislation  of  each  to  accord  with 
differences  of  environment  caused  by  climate,  racial 
elements,  local  custom,  and  antecedents.  In  the  United 
States,  more  than  anjrwhere  else  in  the  world,  full  ad- 
vantage has  been  taken  of  the  possibilities  of  the  federal 
principle.  Its  history  is  largely  a  history  of  federations. 
In  the  earliest  times  of  colonial  history  we  have  the 
formation  of  Connecticut  by  the  federal  union  of  its 
towns,  and  the  establishment  in  1643  of  the  New  Eng- 
land Federation  uniting  the  northerly  colonies  for  mu- 
tual protection.  The  quarrel  with  Great  Britain  in  the 
eighteenth  century  brought  the  thirteen  colonies  into 
a  union,  which,  after  passing  through  the  preUminary 
stages  of  the  Continental  Congress  and  the  abortive 
Confederation  of  1781,  was  finally  consolidated  into  the 
present  federal  republic.  The  principle  of  political 
growth  and  Constitution  adopted  in  1789  has  governed 
the  whole  evolution  of  the  United  States  during  the 
nineteenth  century. 

5.  Distribution  of  power  in  federal  states.  So  much, 
then,  for  the  historical  and  poUtical  aspect  of  the  federal 
principle.  Let  us  turn  now  to  consider  the  important 
subject  of  the  division  of  power  between  federal  and  sub- 
ordinate authorities.  It  is  not  necessary  in  this  connec- 
tion to  take  account  of  any  of  the  confederacies  or  fed- 
eral governments  previous  to  the  formation  of  the  Con- 
stitution of  the  United  States.  In  these  only  the  most 


FEDERAL  GOVERNMENT  243 

elementary  and  necessary  powers  were  allotted  to  the 
central  government.  But  the  federations  of  1789  and  of 
the  nineteenth  century  offer  an  interesting  series  which 
may  be*  studied  with  a  view  to  discovering  the  teaching 
of  experience  in  regard  to  the  relative  position  of  central 
and  subordinate  authorities.  We  may  here  best  begin 
by  stating  the  general  principles  of  apportionment  of 
power.  The  prime  historical  motive  of  federation  has 
been  the  need  of  defense.  It  is  therefore  first  of  all  req- 
uisite that  the  federal  government  should  have  control 
of  the  military  and  naval  power.  Closely  connected  to 
this  is  the  necessity  that  in  its  dealings  with  outside 
states  the  federation  should  conduct  itself  as  a  unit.  The 
control  of  foreign  relations  must  therefore  rest  with  the 
central  power.  Since  neither  foreign  relations  nor  war 
can  be  conducted  without  financial  support,  it  is  further 
necessary  that  the  federal  government  should  have 
some  power  of  taxation  of  the  individual  citizens.  It  is 
not  enough  that  it  should  be  able  to  requisition  the 
component  commonwealths  for  the  money  it  needs:  this 
was  amply  seen  in  the  collapse  of  the  finances  of  the  old 
Confederation  (1781-89).  To  cover  urgent  and  tempo- 
rary needs,  the  financial  power  must  include  the  power 
to  borrow.  These  three  functions  —  the  conduct  of  war 
and  defense,  the  control  of  foreign  alBfairs,  and  the  power 
to  raise  money  —  are  the  prime  essentials  without  | 
which  no  federal  state  can  exist. 

As  a  second  class  of  governmental  duties  may  be 
ranked  all  those  which  are  only  effective  in  so  far  as  uni- 
formly and  generally  performed.  Of  this  nature  are  the 
control  of  coinage,  the  regulation  of  patents  and  copy- 
rights, and  the  conduct  of  the  postal  service.  Third  in 
the  hst  will  stand  a  variety  of  public  affairs  in  which, 
though  uniformity  is  not  absolutely  essential,  it  is  never- 


244    THE  STRUCTURE  OF  THE  GOVERNMENT 

theless  largely  contributory  to  national  progress.  In  this 
connection  may  be  mentioned  the  control  of  the  more 
extensive  transportation  facilities  (those  which  consti- 
tute "interstate  commerce"),  —  railroads,  canals,  tele- 
graphs, etc.,  —  the  regulation  of  the  banking  system, 
and  the  establishment  of  a  general  tariff.  The  latter  is  a 
somewhat  anomalous  case.  Federal  control  of  a  tariff  is 
apt  to  find  its  place  among  the  powers  of  the  central 
government  from  financial  reasons  sooner  than  from 
economic.  The  tariff  offers  a  convenient  and  somewhat 
surreptitious  form  of  taxation.  Though  not  theoreti- 
cally a  requisite  power  of  the  central  government,  it  is  in 
practice  of  great  importance:  tariff  walls  are  a  serious 
impediment  to  the  consolidation  of  national  life.  To 
illustrate  this  one  may  refer  to  the  tariff  bickerings  of 
the  thirteen  States  under  the  Articles  of  Confederation, 
or  to  the  case  of  the  German  states  united  in  the  Con- 
federation of  1815.  In  this  last  instance  not  only  was 
each  state  a  separate  tariff  area  from  the  others,  but  the 
single  states  were  subdivided  —  Prussia  was  a  political 
unit,  but  contained  sixty-seven  different  tariff  areas.* 
As  a  fourth  class  may  be  placed  the  debatable  category 
of  subjects  whose  aUotment  to  the  federal  or  component 
government  is  a  matter  of  opinion  and  must  depend  on 
the  circumstances  of  the  case.  Here  the  conspicuous 
examples  are  seen  in  the  regulation  of  marriage  and  di- 
vorce and  in  the  control  of  public  education.  Beyond 
this  as  the  fifth  and  final  class  he  those  duties  which  cer- 
tainly ought  to  be  left  to  the  constituent  governments 
to  perform.  Here  again  opinion  may  differ,  but  public 
works  of  merely  local  scope,  public  charities,  the  regula- 
tion of  the  liquor  question,  etc.,  are  generally  included. 

'  See  in  thia  connectioD  Seignobos.  Politieal  History  of  Europe, 
chap.  XXV. 


FEDERAL  GOVERNMENT  245 

With  this  outline  let  us  now  briefly  compare  the  ac- 
tual distribution  of  powers  in  the  chief  federations  under 
our  notice.  We  may  begin  by  quoting  the  legislative 
powers  assigned  to  Congress  by  the  Constitution  of  the 
United  States: 

The  Congress  shall  have  Power  to  lay  and  collect  Taxes, 
Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide 
for  the  common  Defence  and  general  Welfare  of  the  United 
States;  but  all  Duties,  Imposts  and  Excises  shall  be  uniform 
throughout  the  United  States; 

To  borrow  money  on  the  Credit  of  the  United  States; 

To  regulate  Commerce  with  foreign  Nations,  and  among 
the  several  States,  and  with  the  Indian  Tribes; 

To  establish  an  uniform  Riile  of  Naturalization,  and  uni- 
form Laws  on  the  subject  of  Bankruptcies  throughout  the 
United  States; 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  to  fix  the  Standard  of  Weights  and  Measures; 

To  provide  for  the  Punishment  of  counterfeiting  the  Se- 
curities and  current  Coin  of  the  United  States; 

To  establish  Post  Offices  and  post  Roads; 

To  promote  the  Progress  of  Science  and  useful  Arts,  by 
securing  for  limited  Times  to  Authors  and  Inventors  the 
exclusive  Right  to  their  respective  Writings  and  Discoveries; 

To  constitute  Tribunals  inferior  to  the  Supreme  Court; 

To  define  and  Punish  Piracies  and  Felonies  committed 
on  the  high  Seas  and  Offences  against  the  Law  of  Nations; 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal, 
and  make  Rules  concerning  Captures  on  Land  and  Water; 

To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two  Years; 

To  provide  and  maintain  a  Navy; 

To  make  Rules  for  the  Government  and  Regulation  of  the 
land  and  naval  Forces; 

To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  In- 
vasions; 

To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  em- 


246    THE  STRUCTURE  OF  THE  C30VERNMENT 

ployed  in  the  Service  of  the  United  States,  reserving  to  the 
States  respectively,  the  Appointment  of  the  Officers,  and  the 
Authority  of  training  the  Militia  according  to  the  discipline 
prescribed  by  Congress; 

To  exercise  exclusive  Legislation  in  all  Cases  whatsoever, 
over  such  District  (not  exceeding  ten  Miles  square)  as  may, 
by  Cession  of  particular  States,  and  the  Acceptance  of  Con- 
gress, become  the  Seat  of  the  Government  of  the  United 
States,  and  to  exercise  like  Authority  over  all  Places  purchased 
by  the  Consent  of  the  Legislature  of  the  State  in  which  the 
Same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Arsenals, 
Dock- Yards,  and  other  needful  Buildings;  —  And 

To  make  all  Laws  which  shall  be  necessary  and  proper  for 
carrjdng  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  OflScer  thereof.* 

It  will  be  seen  at  once  that  apart  from  the  special 
provisions  relating  to  the  Indians  and  the  District  of 
Columbia,  there  are  no  powers  granted  here  that  have 
not  been  given  to  the  central  government  in  all  the  later 
federations.  The  national  government  receives  by  this 
article  but  little  more  than  the  necessary  powers  of  gov- 
ernment. The  residual  power  of  government  —  the 
authority  to  control  those  things  for  which  no  special 
provision  is  made  —  is  elsewhere  explicitly  withheld 
from  it. 

Let  us  place  in  immediate  comparison  with  this  the 
allotment  of  power  between  the  federal  and  provincial 
governments  in  the  Dominion  of  Canada.  The  basis  of 
the  constitution  of  Canada  is  a  statute  of  the  British 
ParUament  named  the  British  North  America  Act  of 
1867.  The  provisions  in  respect  to  the  distribution  of 
power  are  in  the  ninety-first,  ninety-second,  and  ninety- 
third  sections  of  the  act.  They  are  particularly  interest- 
ing in  the  present  connection  because  they  are  based  on 
»  Art.  1,  s  8. 


FEDERAL  GOVERNMENT  247 

the  arrangement  made  m  the  Constitution  of  the  United 
States  revised  in  the  light  of  subsequent  poUtical  experi- 
ence. In  addition  to  the  powers  possessed  by  Congress, 
the  legislative  power  of  the  Dominion  ParUament  ex- 
tends to  the  criminal  law,  marriage  and  divorce,  interest, 
and  the  raising  of  money  by  any  mode  or  system  of 
taxation.  Other  things,  such  as  banking,  etc.,  are  in- 
cluded which  are  not  expUcitly  granted  to  the  Congress 
and  to  which  the  federal  authority  in  the  United  States 
only  reaches  by  interpretation  of  implied  powers.  In 
addition  to  this  the  statute  enacts  that  the  Dominion 
Parliament  has  legislative  power  "in  relation  to  all  mat- 
ters not  coming  within  the  classes  of  subjects  by  this  act 
assigned  exclusively  to  the  legislatures  of  the  Provinces." 
The  amount  of  federal  power  expressly  granted  con- 
trasts strongly  with  the  section  of  the  American  Consti- 
tution quoted  above.  Even  as  compared  with  the  power 
of  Congress  when  expanded  by  the  doctrine  of  imphed 
powers,  the  control  of  the  Dominion  over  such  items  as 
the  criminal  law  represents  a  considerable  increase  of 
federal  authority. 

Closely  following  upon  the  making  of  the  Canadian 
constitution,  we  have  the  constitutions  of  two  important 
federal  states.  These  are  the  constitution  of  the  German 
Empire  (1871)  and  that  of  Switzerland  (1874).  In  each 
of  these  the  scope  of  the  central  power  was  made  far 
wider  than  in  that  of  the  United  States.  In  Germany 
the  constitution,  together  with  an  amendment  of  De- 
cember 20,  1873,  granted  to  the  federal  government  the 
control,  not  only  of  the  things  within  the  jurisdiction  of 
Congress,  but  also  the  criminal  law,  civil  law  and  judi- 
cial procediu'e,  banking,  medical  practice,  railroads  (ex- 
cept in  Bavaria),  the  regulation  of  the  press,  of  trades, 
insurance  (including  workingmen's  insurance  a>nd  pen- 


248    THE  STRUCTURE  OF  THE  GOVERNMENT 

Bion  laws),  and  other  matters.*  In  Germany  the  legisla- 
tive scope  of  the  central  government  was  vastly  greater 
than  in  America.  Its  action  in  the  administrative  direc- 
tion was  less,  since  the  principle  of  decentralization  was 
here  adopted  and  the  federal  measures  (tariff,  etc.)  were 
carried  out  by  the  authorities  of  the  constituent  govern- 
ments. The  action  of  the  central  government  was  fur- 
ther narrowed  in  practice  by  the  use  that  was  made  of 
the  principle  of  concurrent  jurisdiction.  In  many  of  the 
matters  mentioned  above  the  power  of  the  federal  gov- 
ernment was  not  exclusive.  Where  the  federal  govern- 
ment had  not  seen  fit  to  act,  the  states  were  free  to  exer- 
cise a  legislative  power.  This  applied  for  example  to  the 
control  of  railroads,  medical  practice,  the  criminal  and 
civil  law,  etc.  The  federal  jurisdiction  was  only  exclu- 
sive where  from  the  nature  of  the  case  it  must  be  so 
(such  as  raising  of  money  on  the  credit  of  the  empire)  or 
where  it  was  expressly  stated  (for  example,  the  taxation 
of  imports).^  To  prevent  conflict  of  authority  it  was 
provided  that  a  federal  law  always  overrode  a  statute  of 
one  of  the  constituent  parts  of  the  empire.  This  same 
principle  of  concurrent  jurisdiction  obtains,  of  course,  in 
the  United  States,  but  to  a  much  less  extent;  most  of  the 
powers  granted  to  Congress  are  forbidden  to  the  Com- 
monwealths, but  in  some  matters,  such  as  bankruptcy 
laws,  they  may  act  in  the  absence  of  federal  legislation. 
The  present  constitution  of  Switzerland  (1874),  together 
with  the  amendments  since  added,  shows  a  wide  range 
of  federal  power.  "The  legislative  authority  of  the  na- 
tional government,"  says  Professor  A.  Lawrence  Low- 
ell,' "is  much  more  extensive  in  Switzerland  than  in 
this  country,  for  in  addition  to  the  powers  conferred 

*  Imperial  Constitution,  art.  iv.  '  Ibid.,  art.  xxxv. 

*  Govenwient  and  Parties  in  Continental  Europe,  vol.  u,  chap.  xi. 


FEDERAL  GOVERNMENT  249 

upon  Congress  it  includes  such  subjects  as  the  regula- 
tion of  religious  bodies  and  the  exclusion  of  monastic 
orders,  the  manufacture  and  sale  of  alcoholic  liquors,  the 
prevention  of  epidemics  and  epizootics,  the  game  laws, 
the  construction  and  operation  of  all  railroads,  the  regu- 
lation of  all  labor  in  factories,  the  compulsory  insurance 
of  workmen,  the  collection  of  debts,  and  the  whole  range 
of  commercial  law."  To  this  may  be  added  the  fact  that 
the  federal  government  has  the  power  (under  the  con- 
stitution) to  compel  the  cantons  to  establish  compulsory 
secular  education,  gratuitous  in  the  primary  schools. 
The  Swiss  government  has,  however,  no  power  to  levy 
direct  taxes. 

As  a  concluding  instance  let  us  notice  the  position  of 
the  central  power  in  the  federation  of  the  Australian 
colonies.  The  Commonwealth  of  Australia,  considered 
apart  from  its  connection  with  the  British  Empire,  is  a 
federal  unit  made  of  six  separate  "states."  ^  Its  consti- 
tution, like  that  of  Canada,  is  found  in  a  statute  of  the 
British  ParUament  enacted  in  1900,  under  the  title  of 
the  Commonwealth  of  Australia  Constitution  Act.  The 
legislative  power  of  the  federal  parliament  is  laid  down 
in  great  detail.  ^  It  includes  all  the  essential  and  virtually 
essential  powers  already  treated,  such  as  defense,  taxa- 
tion, postal  service,  tariffs,  interstate  commerce,  etc.  In 
addition  to  this  the  federal  authority  is  expUcitly  de-^ 
clared  to  extend  to  bounties  on  production  or  export, 
insurance  (other  than  state  insurance),  marriage  and 
divorce,  invalid  and  old-age  pensions,  foreign  corpora- 

'  Rightly  or  wrongly  the  Australians  have  adopted  the  term  "  states  " 
as  the  official  designation  of  the  component  parts  of  their  federation. 
Since  the  whole  body  is  officially  called  the  Commonwealth,  we  find 
the  terminology  used  by  various  American  writers  exactly  reversed. 

*  Constitution  Act,  part  v,  \  51  and  {  52.  A  good  commentary  is 
given  by  Professor  Harrison  Moore,  The  Commonwealth  of  AuatmliOt 
ohap  V. 


250    THE  STRUCTURE  OF  THE  GOVERNMENT 

tions,  acquisition  of  state  railways  (with  consent  of  the 
state),  railway  construction  (with  similar  consent),  rail- 
road control  even  without  consent  if  needed  for  military 
purposes,  conciliation  of  industrial  disputes,  if  not  con- 
fined to  a  single  state,  inunigration,  influx  of  criminals, 
and  other  minor  matters.  It  is  interesting  to  notice  the 
use  that  is  made  of  the  principle  of  concurrent  jurisdic- 
tion. The  German  constitution  of  1871  had,  as  we  have 
seen,  dehberately  adopted  this  plan.  The  British  North 
America  Act,  on  the  other  hand,  tries  to  indicate  the 
powers  of  Dominion  and  provincial  governments  as  ex- 
clusive of  one  another;  in  practice  this  has  led  to  confu- 
sion. In  Australia  only  a  few  of  the  powers  are  expressly 
declared  exclusive  (§  52).  In  the  majority  of  instances 
the  state  govermnent  may  act  where  the  federal  govern- 
ment has  not  done  so.  But,  as  in  the  German  Empire, 
"When  the  law  of  a  state  is  inconsistent  with  a  law  of 
the  commonwealth  the  latter  shall  prevail."  This  last 
provision  must  not  be  misunderstood.  The  law  of  the 
commonwealth  in  question  must  not  transcend  the  con- 
stitutional power  of  the  federal  parliament,  otherwise 
its  appUcation  can  be  declared  invaUd  by  the  courts, 
just  as  in  America. 

6.  Conclusions.  From  the  foregoing  comparison  of 
the  chief  federations  of  the  nineteenth  century,  impor- 
tant conclusions  are  to  be  drawn.  There  is  manifest 
throughout  the  tendency  to  entrust  the  central  or  na- 
tional government  with  a  wider  and  wider  sphere  of  au- 
thority. For  this  several  reasons  are  to  be  assigned.  In 
the  first  place  it  represents  a  process  that  is  altogether 
natural,  and  which  may  rightly  be  spoken  of  as  organic. 
The  units  of  the  federation  once  brought  into  contact 
begin  to  grow  together,  and  to  be  knit  into  a  more  and 
more  united  body.  The  original  jealousy  and  particular- 


FEDERAL  GOVERNMENT  261 

ism  of  the  separate  parts  are  gradually  merged  into  the 
wider  outlook  that  accompanies  a  larger  national  life; 
the  central  government  of  the  federation  becomes  a  part 
and  parcel  of  each  individual  citizen,  and  enlists  in  its 
support  a  broader  patriotism  than  narrow  adherence  to 
the  interests  of  his  section  of  the  community.  Where 
the  sense  of  natural  greatness  is  involved,  constitutional 
limitations  can  be  overridden  with  pubUc  approval;  the 
addition  of  Louisiana  to  the  territory  of  the  United 
States  at  once  suggests  itself  in  illustration.  An  equally 
potent  factor  leading  to  the  extension  of  federal  power  is 
found  in  the  material  conditions  of  modem  hfe.  Rapid 
transportation,  the  telegraph,  and  the  evolution  of  pro- 
duction and  commerce  on  a  scale  undreamed  of  at  the 
making  of  the  Constitution  have  broken  down  the  eco- 
nomic barriers  that  once  existed.  Communities  that 
were  originally  absolutely  distinct  in  their  economic  and 
social  life  have  undergone  a  complete  industrial  amalga- 
mation. Each  administers  to  the  wants  of  the  other,  and 
each  in  turn  receives  a  benefit.  The  wheat-fields  of  the 
Dakotas  and  the  factories  of  Massachusetts  are  comple- 
mentary to  one  another.  Where  industry  and  com- 
merce are  thus  fused  into  a  single  economic  life,  it  is  im- 
possible to  separate  the  control  of  them  into  distinct 
territorial  districts.  It  becomes  an  absolute  necessity 
that  the  powers  of  the  federal  government  must  be 
either  so  expressed  or  so  interpreted  as  to  cover  the 
whole  range  of  economic  hfe  that  has  passed  the  bounds 
of  the  component  "states"  and  become  national.  It  is 
for  this  reason  that  the  process  of  addition  to  federal 
power  may  be  expected  to  continue  in  the  future.  Be- 
fore the  intruding  forces  of  industrial  civiUzation  "state 
Unes"  are  becoming  more  and  more  meaningless.  More- 
over, the  true  path  to  be  followed  has  been  already  indi- 


252    THE  STRUCTURE  OF  THE  GOVERNMENT 

cated  by  the  German  and  Australian  constitutions.  By 
adopting  the  plan  of  concurrent  jurisdiction  and  leaving 
it  to  the  central  government  to  occupy  the  field  in  pro- 
portion as  the  progress  of  national  evolution  demands 
it,  a  way  is  open  for  continued  expansion  without  suf- 
fering the  pangs  of  amendment,  or  relying  upon  the 
strained  interpretation  of  the  law. 

We  have  still  left  out  of  consideration  the  question  of 
how  the  American  Constitution,  made  at  a  time  when 
local  jealousies  prescribed  the  most  grudging  admission 
of  federal  power,  is  able  to  adapt  itself  to  the  changed 
situation  of  to-day.  That  this  is  not  done  by  legal 
amendment  has  been  already  shown:  the  amending 
machinery  of  the  Constitution  is  so  cumbrous  that  it  is 
insufficient  for  the  kind  of  adaptation  here  demanded. 
But  instead  of  technical  amendment  a  process  of  virtual 
amendment  has  been  effected  continuously  through  the 
nineteenth  century  by  the  interpretation  given  to  the 
Constitution  by  the  courts.  The  Constitution  is  fortu- 
nately an  elastic  document,  capable  of  meaning  much  or 
little  at  the  will  of  its  interpreter.  The  courts  therefore 
have  fallen  back  on  the  doctrine  of  "implied  powers," 
and  have  stretched  the  Constitution  to  cover  things 
never  contemplated  in  its  Uteral  meaning.  "A  power 
vested,"  said  Chief-Justice  Marshall,  "carries  with  it 
all  those  incidental  powers  which  are  necessary  to  its 
complete  and  efficient  execution."  The  purchase  of 
Louisiana,  the  Embargo  Act  of  1807,  grants  of  land  for 
railroads  and  canals,  the  annexation  of  Texas,  grants  of 
land  for  agricultural  colleges,  etc.,  are  not  things  for 
which  direct  authority  can  be  found  in  the  eniunerated 
powers  of  the  federal  government.^  It  is  by  interpreta- 

*  See  Everett  Kimball,  The  NcUional  Oovemment  of  the  United  Statet 
(1920),  chap.  xn. 


FEDERAL  GOVERNMENT  253 

tion  only  that  Congress  has  the  power  to  issue  paper 
money,  to  make  anything  it  wills  legal  tender,  to  charter 
and  regulate  national  banks,  to  claim  a  monopoly  of  the 
postal  service.  It  is  probable  that,  if  future  needs  de- 
mand it,  the  Constitution  can  be  held  to  permit  the  na- 
tional government  to  build,  buy,  and  own  railroads,  and 
to  monopolize  the  telegraph  service.  That  this  device 
of  latitudinarian  interpretation  has  filled  a  most  useful 
historical  purpose  is  beyond  a  doubt.  It  is  an  excellent 
example  of  the  political  genius  inherent  in  the  Anglo- 
Saxon  temperament,  that  the  difficulty  created  by  the 
error  in  making  amendment  so  rigid  should  be  sur- 
mounted by  so  simple  and  natural  a  remedy.  The  error 
remains  an  error  nevertheless.  The  Swiss  or  Australian 
system,  whereby  recurring  amendment  is  part  of  the  life 
of  the  constitution,  is  greatly  to  be  preferred. 

READINGS  SUGGESTED 

Sidgwick,  H.,  Development  of  European  Polity  (1903),  lectures 

IX  and  xxix. 
The  Federalist,  essays  xv,  xvi,  xvii. 
Fiske,  J.,  American  Political  Ideas  (1902),  lecture  n. 

FURTHER  AUTHORITIES 

Story,  J.,  Commentaries  on  the  Constitution  of  the  United  States 

(5th  edition,  1891). 
Curtis,  G.  T.,  Constitviional  History  of  the  United  States,  vol.  i 

(1896). 
Vincent,  J.  M.,  Government  in  Switzerland  (1900). 
Moore,  H.,  The  Commonwealth  of  Australia  (1902). 
Bourinot,  Sir  John,  Manual  of  the  Constitutional  History  of 

Canada  (1888). 
Freeman,  E.  A.,  History  of  Federal  Government  (1863). 
Dareste,  F.  R,,  Les  Constitutums  Modemes  (1891). 
Laband,  Staatsrecht  des  Deutschen  Reiches  (4th  edition,  1901). 


254    THE  STRUCTURE  OF  THE  GOVERNMENT 

Constitution  of  the  Confederate  States  of  America  (see  Curtis, 
Constitutional  History,  vol.  n,  appendix). 

Stephens,  A.  H.,  A  Constitutional  View  of  the  War  between  the 
States  (1867-70). 

Merriam,  C.  E.,  History  of  the  Theory  of  SovereigrUy  since  Rous- 
seau (1900). 

Doyle,  J.  A.,  English  in  America  (1887). 

West,  H.  L.,  Federal  Power  (1918). 

Foley,  A.  P.,  The  Federal  Systems  of  the  United  States  and  the 
British  Empire  (1913). 


CHAPTER  VI 
COLONIAL  GOVERNMENT 

1.  The  acquisition  of  dependencies  —  2.  Colonies  of  the  anotent 
world  —  3.  Colonial  expansion  after  the  discovery  of  the  sea 
route  to  the  East  Indies  and  the  discovery  of  America;  Spanish 
colonial  system  —  4.  Colonial  policy  of  England  and  France  in  the 
seventeenth  and  eighteenth  centuries  —  6.  The  American  Revolu- 
tion —  6.  Alteration  of  British  colonial  policy  in  the  nineteenth 
centiuy;  establishment  of  self-government  —  7.  Present  British 
system  of  colonial  administration  —  8.  Imperial  federation  — 
9.  Recent  colonial  expansion  of  European  states  —  10.  The  de- 
pendencies of  the  United  States. 

I.  The  acquisition  of  dependencies.  Taking  the  word 
"  colony  "  in  its  widest  sense  to  include  all  kinds  of  de- 
pendencies, we  are  met  by  the  fact  that  the  colonies  of 
the  world  occupy  about  two  fifths  of  the  land  surface  of 
the  globe,  and  contain  a  population  of  half  a  biUion 
people.  At  the  end  of  the  Great  War  Great  Britain  had 
at  least  372,000,000  colonial  subjects,  France  44,600,000, 
the  Netherlands  47,149,903,  and  Belgium  7,000,000.^ 
The  political  status  of  the  communities  thus  controlled 
presents  the  greatest  diversity.  In  the  strict  theory  of 
law  each  of  them  is  under  t\e  absolute  dominion  of  the 
sovereign  state  to  which  it  "belongs."  In  practice  they 
vary,  from  the  virtual  independence  enjoyed  by  Canada 
and  AustraUa  to  the  total  dependence  of  Gibraltar  or 
Madagascar.  The  vast  extent  and  the  general  natural 
resources  of  the  modern  colonial  area  indicate  its  im- 
portance in  the  future  history  of  the  world.  The  real- 
ization of  this  by  the  great  powers  led,  during  the 
closing  years  of  the  nineteenth  century,  to  a  renewed 

I  Statistics  from  the  Statesman's  Year-Book,  1910. 


256    THE  STRUCTURE  OF  THE  GOVERNMENT 

colonial  expansion,  in  which  practically  all  the  "un- 
claimed" territory  of  the  world  was  partitioned  among 
the  leading  states.  The  subject  of  colonial  administra- 
tion, both  political  and  economic,  has  taken  on,  in  con- 
sequence, an  increased  interest,  and  attention  is  more 
and  more  directed  to  the  study  of  the  systematic  man- 
agement of  dependencies.  The  expansion  of  the  United 
States  dating  from  the  war  with  Spain  has  rendered  this 
portion  of  the  study  of  government  one  of  especial  con- 
sequence to  Americans.  The  present  chapter,  therefore, 
will  be  directed  towards  an  inquiry  into  the  origin  and 
evolution  of  colonial  government,  the  different  systems 
of  administrations  now  employed,  and  the  question  of 
the  political  future  of  colonies.  Throughout  the  chapter 
it  will  be  proper  to  devote  most  attention  to  the  colonies 
of  the  United  Kingdom.  Great  Britain  has  been,  par 
excellence,  and  still  is,  the  colonizing  country;  and  it  is 
by  the  British  government,  in  a  somewhat  groping  and 
half-conscious  way,  that  what  may  be  called  the  modem 
system  of  colonial  administration  has  been  worked  out. 
The  new  dependencies  of  the  United  States  will  be  ex- 
amined in  conclusion  in  order  that  their  present  govern- 
ment may  be  discussed  in  the  hght  of  British  experience 
in  the  past. 

A  sovereign  state  comes  to  possess  dependencies  in 
various  ways.  The  simplest  is  that  of  conquest,  by 
which  the  vanquished  community  is  subjected  to  the 
rule  of  its  victors.  Such  was  the  case  with  the  expansion 
of  Rome,  whose  "provinces"  were  countries  conquered 
by  the  Roman  arms.  The  Spanish  colonies  of  Mexico 
and  Peru,  and  the  British  dominions  in  India,  were  the 
fruits  of  conquest.  Closely  akin  to  this  is  the  acquisition 
of  a  colony  by  cession.  A  country  possessing  a  colony 
may  be  compelled  by  defeat  in  war  to  cede  the  colony 


COLONIAL  GOVERNMENT  267 

as  the  price  of  peace,  or  induced  from  commercial  rea- 
sons to  sell  it.  The  numerous  treaties  of  the  eighteenth 
century,  whereby  France  and  England  handed  their 
colonial  possessions  back  and  forth,  were  of  this  sort. 
The  cession  of  Canada  by  France  (1763),  and  of  the 
Philippines  by  Spain  (1898),  are  instances  of  colonial 
acquisition  by  war,  while  the  purchase  of  Louisiana 
(1803)  illustrates  the  purely  financial  process  of  ac- 
quisition. In  addition  to  these  two  modes  of  colonial 
aggrandizement  there  remains  what  may  be  called,  par 
excellence^  the  colonizing  process,  namely,  that  of  occu- 
pation and  settlement.  In  this  case  the  claim  to  the 
colony  rests,  if  not  on  actual  discovery  of  the  land 
(Newfoundland,  Australia,  etc.),  at  any  rate  on  priority 
of  actual  occupation.  Where  a  native  population  is 
found  in  fixed  agricultural  settlements,  the  assumption 
of  control  approximates  to  conquest.  But  where  the 
native  population  is  sparse  and  migratory,  merely  wan- 
dering over  the  land  in  nomadic  fashion,  living  on  the 
bounty  of  nature  and  the  fruits  of  the  chase,  their  pres- 
ence ought  not  to  invaUdate  the  claim  of  immigrants 
proposing  to  make  a  permanent  and  fixed  settlement. 
Much  sentiment  has  been  wasted  over  the  supposed 
claim  of  the  Indians  to  the  continent  of  North  America. 
When  it  is  recalled  that  the  whole  Indian  population, 
from  Newfoundland  to  Florida,  and  from  the  Mississippi 
to  the  sea,  was  about  as  numerous  as  the  inhabitants  of 
a  large  American  city  (probably  about  200,000),  and 
that  its  settlements  were  only  in  a  few  places  fixed  and 
agricultural,  its  "claim"  to  ownership  of  the  whole 
coimtry  becomes  somewhat  absurd.  One  may  well  ask 
how  far  such  reasoning  should  be  carried.  Did  the  few 
starveling  bushmen  of  the  desert  and  forest  of  AustraUa 
own  the  whole  continent?  Without  accepting  the  brutal 


258    THE  STRUCTURE  OF  THE  GOVERNMENT 

code  of  the  right  of  the  strongest,  one  may  in  all  reason- 
ableness recognize  the  right  of  civilized  nations  to  the 
acquisition  of  territory  which  is  only  "squatted  upon" 
by  wandering  savages. 

2.  Colonies  of  the  ancient  world.  Of  the  colonies  of 
the  ancient  world  those  of  Greece  and  Phoenicia  along 
the  shores  of  the  Mediterranean  are  the  most  note- 
worthy. The  Phoenician  settlements  were  for  the  most 
part  merely  trading  stations,  but  there  were  exceptions 
also  (such  as  Carthage)  in  which  a  large  body  of  emi- 
grants established  a  permanent  agricultural  settlement. 
The  colonies  of  Greece  were  on  a  larger  scale:  they  re- 
sulted first  of  all  from  the  Dorian  invasion  of  the  Pelo- 
ponnesus about  1000  B.C.,  which  drove  many  fugitives 
to  seek  new  homes.  Similarly  the  conquests  of  the 
Spartans  and  the  inroads  of  the  Persians  occasioned  a 
scattering  of  some  of  the  conquered  tribes.  Other  col- 
onies were  due  to  the  political  dissensions  with  which 
the  restless  city-states  of  Greece  were  rife  and  which 
sometimes  resulted  in  the  deliberate  withdrawal  of  a 
part  of  the  citizens  to  found  a  new  city  elsewhere.  But 
the  establishment  of  Greek  and  Phoenician  colonies  did 
not  involve  what  we  now  think  of  as  colonial  govern- 
ment. Athens,  indeed,  succeeded  in  exacting  money 
tribute  from  the  cities  she  had  planted  in  the  iEgean 
Sea,  basing  her  claim  on  the  naval  protection  afforded 
them.  But  the  general  practice  was  to  regard  a  colony 
as  an  independent  poUtical  unit  from  its  inception.  It 
was  an  emigration,  an  "outswarming"  of  freemen  who 
carried  with  them  the  same  right  of  self -government  that 
they  had  had  in  their  former  home.  A  somewhat  dif- 
ferent type  of  colony  made  by  settlement  in  ancient 
times  is  seen  in  the  Roman  colonia.  This  was  a  settle- 
ment of  Roman  soldiers  on  land  allotted  to  them  by 


COLONIAL  GOVERNMENT  259 

their  general  after  it  had  been  conquered;  here  the 
prime  object  was  to  create  a  frontier  defense  of  the  em- 
pire, but  these  colonies  often  developed  into  permanent 
settlements. 

3.  Colonial  expansion  after  the  discovery  of  the  sea 
route  to  the  East  Indies  and  the  discovery  of  America; 
Spanish  colonial  system.  It  is  with  the  discovery  of  the 
sea  route  to  the  East  Indies  and  of  America  that  modem 
colonization  begins.  The  sixteenth  century  opened  to 
the  adventurous  spirits  of  Europe  a  wonderland  of  im- 
known  countries,  in  which  to  satisfy  their  passion  for 
exploration  and  adventure,  their  lust  for  gold,  their 
chivalrous  ambition  to  increase  the  dominions  of  their 
king,  and  their  pious  desire  to  spread  the  Christian  re- 
ligion to  the  uttermost  parts  of  the  earth.  It  was  in  this 
age  of  adventure  and  conquest  that  Spanish  and  Por- 
tuguese colonial  aggrandizement  acquired  the  peculiar 
characteristics  of  domination  and  levying  of  tribute 
which  proved  its  ruin.  The  Portuguese,  sailing  around 
the  Cape  of  Good  Hope,  secured  a  monopoly  of  the  rich 
trade  of  the  East.  Thither  their  merchants  flocked  in 
great  numbers,  setting  up  trading  stations  on  the  coast 
of  Africa  (Sofala,  Zanzibar),  on  the  shores  of  the  Indian 
Ocean  (Goa,  Malacca,  etc.),  among  the  East  India 
Islands,  and  even  in  China  and  Japan  (1542).  In  Brazil 
partly  by  sending  over  exiled  Jews  and  transported 
criminals,  they  founded  a  plantation  colony  in  which 
the  sugar-cane  was  cultivated  and  to  which  slaves  were 
early  introduced  from  the  coast  of  Guinea.  Feudal 
grants  of  land  were  made  to  nobles  of  Portugal  with  al- 
most absolute  power  over  the  natives.  The  Spaniards, 
equally  adventurous,  directed  themselves  not  to  the 
East,  but  to  the  West  Indies,  and  to  the  mainland  of 
Central  and  Southern  America.  A  bull  of  Pope  Alex- 


260    THE  STRUCTURE  OF  THE  GOVERNMENT 

ander  VI  (1493)  had  divided  the  unchristian  world  with 
magnificent  generosity  between  Spain  and  Portugal; 
Spain  was  to  have  the  western  world,  Portugal  the  east. 
A  revision  of  the  shares  by  treaty  gave  Brazil  and 
Labrador  to  Portugal  and  all  the  rest  of  America  to 
Spain.  The  Spaniards  proceeded  to  make  good  this 
shadowy  claim  by  vigorous  conquest.  By  the  year  1510, 
Cuba,  Hispaniola,  Porto  Rico,  Jamaica,  and  other  is- 
lands had  fallen  an  easy  prey.  Mexico  was  conquered  by 
Cortes  (1519-21),  and  Peru  fell  before  the  brutal  con- 
queror Francisco  Pizarro  (1525-35).  Thence  Spanish 
dominion  spread  over  the  whole  of  Central  and  South 
America,  except  Brazil. 

From  the  very  beginning,  however,  the  colonial  sys- 
tem of  Spain  ^  had  taken  a  false  bias.  The  colonial  es- 
tablishments were  regarded  solely  as  a  source  of  profit 
to  the  conquerors.  There  was  no  question  of  real  self- 
government  or  liberty  of  trade.  A  recent  writer'  has 
thus  described  the  Spanish  system  of  administration  in 
the  centm-ies  which  followed:  "All  the  laws,  the  con- 
trol of  trade,  commerce,  agriculture,  finance,  taxation, 
the  foundation  of  municipalities,  the  management  of  the 
natives,  and  the  regulation  of  religion  were  made  in  the 
mother  country,  and  sent  to  the  colonies  with  the  expec- 
tation that  the  colonies  would  adapt  themselves  to  the 
laws.  Nor  did  the  decrees  of  the  crown  and  its  agencies 
stop  here,  but  the  home  bureau  organized  the  colonial 
government,  local  and  central.  The  officers  and  rulers 
were  natives  of  Spain  sent  out  to  rule  their  distant  de- 
pendencies. During  the  Spanish  domination  in  America 
nearly  all  the  important  ofiices  of  the  state  and  church 

*  See  Zimmermann,  Die  Europ^ischen  Kolonien,  vol.  i  (1896). 
»  Professor  Blackmar,  U.8.  Bureau  of  Statistics  Publication,  ColO' 
nicd  Administration  (1901). 


COLONIAL  GOVERNMENT  261 

had  been  filled  by  Spaniards.  The  presidents  and 
judges  of  the  courts  were  from  Spain.  There  were 
18  Americans  out  of  672  viceroys,  captains-general,  and 
governors;  and  105  native  bishops  out  of  706  who  ruled 
in  the  colonies.  The  system  of  officialism  continued  in 
all  of  the  colonial  possessions  of  Spain  to  the  close  of 
the  present  [the  nineteenth]  century."  In  matters  of 
trade  and  industry  the  Spanish  colonies  were  under  the 
most  stringent  regulation.  They  could  trade  with  no 
other  country  but  Spain  itself,  and  even  then  only 
through  the  organization  known  as  the  Casa  de  Contra- 
taci6n,  which  held  a  monopoly.  That  such  a  system 
contained  in  itself  the  seeds  of  its  own  ruin  is  only  too 
evident.  The  revolt  of  the  Spanish  colonies  and  the 
establishment  of  their  independence  in  the  early  part 
of  the  nineteenth  century  were  the  natural  outcome  of 
such  a  vicious  and  short-sighted  colonial  policy. 

4.  Colonial  policy  of  England  and  France  in  the 
seventeenth  and  eighteenth  centuries.  Although  Eng- 
land and  France  were  early  in  the  field  with  voyages  of 
exploration  (Cabot,  1497,  Cartier,  1534)  the  establish- 
ment of  their  American  colonies  belongs  to  the  seven- 
teenth century.  With  Champlain's  permanent  settle- 
ment on  the  St.  Lawrence  (1608),  and  the  landing  of  the 
Pilgrim  Fathers  (1620),  the  beginnings  were  laid  of 
New  France  and  New  England.  From  the  grant  of  the 
charter  to  the  Virginia  Company,  1606,  dates  the  com 
mencement  of  the  plantation  colonies  of  the  South.  That 
the  English  colonies  grew  and  flourished  on  the  Atlantic 
is  to  be  attributed  to  the  good  fortune  of  the  English 
government,  rather  than  to  its  poUtical  foresight.  The 
BterUng  qualities  of  the  colonists  themselves,  animated 
by  the  high  purpose  of  religious  refugees,  or  by  the 
daring  of  adventurers,  had  much  to  do  with  their  sue- 


262    THE  STRUCTURE  OF  THE  GOVERNMENT 

cess.  It  was  through  the  neglect,  and  not  by  the  policy, 
of  the  home  government,  that  the  colonists  acquired 
their  political  right  of  self-government.  The  charter 
granted  to  the  Massachusetts  Bay  Company  in  1629 
was  intended  by  the  government  as  a  sort  of  commercial 
instrument  for  the  conduct  and  governance  of  a  trading 
company.  It  was  the  emigration  of  the  officers  and  the 
company  itself  to  the  shores  of  America  which  converted 
it  into  a  poHtical  constitution.  In  the  seventeenth  cen- 
tury the  EngUsh  in  general  did  not  dream  of  the  magni- 
tude of  the  colonial  empire  which  lay  within  their  reach. 
In  this  their  colonial  poUcy  was  sharply  contrasted  with 
that  of  France.  The  French  government  early  recog- 
nized the  possibihties  of  American  colonization;  they 
realized  the  value  of  the  St.  Lawrence  and  the  Missis- 
sippi as  opening  the  way  to  the  interior  of  the  continent, 
and  planned  a  vast  colonial  empire  which  should  en- 
circle the  narrow  Enghsh  settlement  of  the  Atlantic  sea- 
board. The  English  government  in  the  seventeenth 
century  gave  httle  or  no  help  to  its  dependencies;  the 
French  were  ready  from  the  first  with  money  and  ships 
to  be  used  in  the  upbuilding  of  New  France.  It  has  been 
part  of  the  irony  of  history  that  the  magnificent  empire 
thus  planned  by  the  French  should  have  passed  by  the 
fortune  of  war  into  the  hands  of  the  British  crown. 

But  before  the  close  of  the  seventeenth  centiuy,  the 
American  colonies,  from  their  growth  in  population  and 
the  development  of  their  resources,  began  to  assume  a 
new  importance.  The  colonial  trade  offered  a  harvest  to 
the  merchants  of  the  mother  coimtry,  and  suppUed  a 
new  bone  of  contention  to  vex  the  long-standing  quarrels 
of  England  and  France.  Indifferent  as  the  British  gov- 
ernment had  been  to  the  political  position  of  its  earlier 
colonists,  it  adopted  in  reference  to  the  growing  trade 


COLONIAL  GOVERNMENT  263 

of  the  colonies  a  policy  much  resembling  that  of  Spain. 
So  too  did  the  French,  whose  colonial  schemes  included, 
of  course,  the  profit  to  be  derived  by  the  mother  coun- 
try from  the  natural  wealth  of  its  possessions.  Alread5 
in  the  reign  of  Charles  II  the  Navigation  Acts^  had 
placed  restrictions  on  colonial  commerce.  By  the  first 
of  these  (1660)  foreign  ships  were  forbidden  to  trade 
with  the  colonies.  All  colonial  sugar,  tobacco,  cotton, 
indigo,  and  other  enumerated  articles  were  to  be  sent 
only  to  England,  or  to  an  English  possession;  nor  could 
foreigners  become  merchants  in  an  EngUsh  colony. 
A  new  act  of  1663  kept  out  all  ships  that  had  been 
built  in  foreign  countries.  An  act  of  1664  obliged 
European  goods,  even  if  placed  in  English  ships,  to  be 
first  landed  in  England  before  being  exported  to  the 
colonies.  Finally,  an  act  of  1672  made  goods  passing 
from  colony  to  colony  liable  to  whatever  customs  du- 
ties they  would  have  incurred  if  brought  into  England. 
These  are  the  famous  Navigation  Acts  which  formed  the 
basis  of  the  Enghsh  colonial  policy  of  the  eighteenth 
century.  It  was  necessary,  indeed,  to  modify  them  by 
making  concessions  to  the  colonists  where  they  became 
too  burdensome.  The  trade  in  wine  and  fish  between 
Portugal  and  New  England  was  made  an  exception. 
On  the  other  hand,  the  acts  were  reenforced  by  a  num- 
ber of  statutes  in  the  early  part  of  the  eighteenth  cen- 
tury. Such  a  commercial  code,  if  applied  to  a  modem 
colony,  would  appear  monstrous.  It  can,  however,  be 
said  in  defense  of  the  acts,  that  they  helped  to  encour- 
age the  growth  of  British  and  colonial  shipping,  and 
thus  contributed  to  the  national  defense  of  both  the 

*  For  the  contents  of  the  Navigation  Acts  and  a  criticism  of  British 
colonial  policy  involved,  the  student  may  consult  Egerton,  Short  Hi»- 
tory  of  British  Colonial  Policy,  a  really  admirable  work. 


264    THE  STRUCTURE  OF  THE  GOVERNMENT 

mother  country  and  the  colonies.  Nor  did  the  reetric- 
tions  laid  upon  trade  press  as  severely  upon  the  colonies 
as  might  be  imagined.  Evasion  of  the  laws  was  notorious, 
and  in  any  case  the  natural  direction  of  commerce  was 
to  the  British  Isles.  Less  defense  can  be  found  for  the 
policy  of  Great  Britain  in  legislating  in  the  eighteenth 
century  against  colonial  manufactures.  "The  creating 
of  manufactures  in  the  colonies,"  ran  a  resolution  of  the 
British  House  of  Commons  in  1719,  "tends  to  lessen 
their  dependence  on  Great  Britain."  In  accordance 
with  this  a  statute  of  that  year,  fortunately  applied  only 
in  part,  forbade  all  forms  of  iron  manufacture  in  the 
American  colonies.  Indeed,  when  all  is  said,  the  whole 
code  of  conmiercial  and  industrial  regulation  must  be 
considered  as  the  outcome  of  the  inveterate  European 
habit  of  viewing  colonial  establishments  as  a  source 
of  mercantile  profit.  "The  deliberate  selfishness  of 
English  commercial  legislation,"  says  Mr.  Lecky,  "was 
digging  a  chasm  between  the  mother  country  and  her 
colonies,  which  must  inevitably,  when  the  latter  had  be- 
come sufficiently  strong,  lead  to  separation."  ^ 

5.  The  American  Revolution.  The  quarrel  between 
England  and  her  American  colonies  which  ended 
finally  in  independence  is  the  most  important  fact  in 
the  evolution  of  colonial  government.  It  showed  to  the 
world  the  elementary  fact  of  colonial  administration, 
that  no  civilized  colony  of  size  and  increasing  population 
can  be  kept  in  a  state  of  pei*manent  political  tutelage. 
It  led  England  to  adopt,  not  immediately  but  ulti- 
mately, the  policy  of  colonial  autonomy.  What  had 
previously  been  done  through  neglect  was  now  sanc- 
tioned by  the  teaching  of  experience.   Yet,  as  in  every 

»  W.  E.  H.  Lecky,  History  of  Erigland  in  the  Eighteenth  Century,  vol. 
lu,  chap.  xu. 


COLONIAL  GOVERNMENT  265 

quarrel,  there  were  certainly  two  sides  to  the  question. 
On  the  one  side  was  the  righteous  protest  of  a  free  people 
against  political  dictation,  against  that  "taxation  with- 
out representation,"  the  very  sound  of  which  is  repugnant 
to  Anglo-Saxon  ears;  on  the  other  side  were  pressing 
needs  of  imperial  defense.^  The  patriotism  of  national 
historians  has  long  obscured  the  one  or  the  other  of 
the  two  sides  of  the  controversy;  it  is  only  after  a  lapse 
of  a  century  and  a  half  that  a  clearer  vision  is  becom- 
ing possible.  That  the  American  resistance  to  imperial 
taxation  in  the  form  in  which  it  came  to  them  was 
justified  seems  beyond  a  doubt.  But  the  colonies  were 
equally  wrong  in  adopting  towards  the  vexed  question 
of  imperial  finance  the  selfish  inertia  of  indifference. 
Unkindly  critics  have  not  scrupled  to  say  that  it  was 
not  "taxation  without  representation"  that  they  re- 
sented, but  taxation  in  any  form  and  by  any  authority. 
The  strain  on  the  imperial  treasury  of  protecting  Brit- 
ish subjects,  both  home  and  colonial,  against  foreign 
powers  had  been  great.  The  successive  wars  against 
France— King  William's  War  (1689-97)  Queen  Anne's 
War  (1702-13),  King  George's  War  (1744-48),  and 
the  French  War  (1756-63),  to  give  them  the  names  by 
which  they  were  known  to  the  colonists  —  had  in- 
creased the  national  debt  at  an  alarming  rate.  Amount- 
ing in  1702  to  a  little  over  twelve  and  a  half  milhon 
pounds,  it  stood  at  over  one  hundred  and  thirty-two 
millions  at  the  Peace  of  Paris  (1763).  Much  of  this 
had  been  spent  in  defense  of  the  American  possessions. 
The  colonies  indaed  had  contributed,  in  separate  fasliion 
and  in  unequal  proportion,  both  money  and  men  to 

'  The  English  siJe  of  the  controversy  is  to  be  found  in  Lecky, 
History  of  England  in  the  EiglUeenth  Century,  vol.  in,  chap,  xii;  and 
Egerton,  Short  History  of  British  Colonial  Polioij,  bk.  ii  {passim)  Soe 
also  Sir  G.  Trcvclyan,  Tha  American  Revolution  (1909),  vol.  i. 


266    THE  STRUCTURE  OF  THE  GOVERNMENT 

aid  the  British  arms  in  America.  It  was  a  colonial  ex- 
pedition that  captured  Louisburg  in  1745,  the  money 
thus  spent  being  partly  reimbursed  by  a  parliamentary 
grant  from  Great  Britain.  But  colonial  contributions 
for  defense  were  irregular  and  unequal.  The  colonies 
removed  from  the  scene  of  immediate  danger  were  in- 
clined to  shirk  responsibility  altogether.  During  King 
George's  War  the  New  York  Assembly  proved  quite 
intractable.  At  first  they  would  do  nothing  for  defense; 
later  they  contributed  money  sparingly  for  the  Louis- 
burg expedition,  but  would  send  no  men.  New  Jersey 
was  an  inveterate  deUnquent.  Sheltered  by  the  adja- 
cent colonies  from  the  actual  ravages  of  frontier  war- 
fare, she  was  never  ready  to  make  adequate  contri- 
bution towards  the  common  defense.  In  Queen  Anne's 
War  the  Assembly  struggled  hard  to  prevent  the  raising 
of  a  military  force,  and  was  only  forced  into  doing  so 
by  the  packing  of  the  house.  Contributions  were  made 
to  King  George's  War,  but  in  the  great  final  struggle 
of  the  French  War,  New  Jersey  remained  culpably  in- 
active.^ These  were  not  isolated  instances,  but  were 
characteristic  of  the  difficulty  of  obtaining  joint  action 
from  the  colonial  governments.  Mr.  Lecky  thus  de- 
scribes the  situation:  "In  order  to  raise  the  money  for 
the  support  of  the  American  army  it  was  necessary  to 
have  the  assent  of  no  less  than  seventeen  colonial  as- 
semblies. The  hopelessness  of  attempting  to  fulfill 
these  conditions  was  very  manifest.  If  in  the  agonies 
of  a  great  war  it  had  been  found  impossible  to  induce 
the  colonies  to  act  together;  if  the  Southern  colonies 
long  refused  to  assist  the  Northern  ones  in  their  strug- 
gle against  France  because  they  were  far  from  the  dan- 

>  See  Lodge,  Short  History  0/  the  English  Colonies  in  America,  chap. 

XIV. 


COLONIAL  GOVERNMENT  267 

ger;  if  South  Carolina,  when  reluctantly  raising  troops 
for  the  war,  stipulated  that  they  should  act  only  within 
their  own  province;  if  New  England  would  give  little 
or  no  assistance  while  the  Indians  were  carrying  desola- 
tion over  Virginia  and  Pennsylvania,  what  chance  was 
there  that  all  these  colonies  would  agree  in  time  of 
peace  to  propose  uniform  and  proportionate  taxation 
on  themselves  in  support  of  an  English  army?"  The 
financial  difl&culty  to  be  faced  was  thus  an  actual 
one,  though  aggravated  by  the  mistaken  poHcy  of  the 
British  crown.  The  colonies  and  the  mother  country 
had  reached  an  impasse;  fiirther  continuance  on  the 
existing  basis  was  no  longer  possible;  the  only  solution 
could  have  been  found  in  a  joint  revision  of  inter- 
imperial  relations;  this  the  dull  stupidity  of  the  Eng- 
hsh  administration  and  the  wilKul  inertia  and  mutual 
jealousies  of  the  colonies  rendered  impossible.^  It  is 
of  importance  properly  to  appreciate  the  historic  situ- 
ation thus  created ;  for  the  relative  pohtical  situation  of 
Great  Britain  and  her  colonies  has  reproduced  itself  in 
the  present  century,  and  as  yet  no  final  solution  of  the 
problem  has  been  found. 

6.  Alteration  of  British  colonial  policy  in  the  nine- 
teenth century;  establishment  of  self-government.  In 
what  has  been  said  above  it  is  not  meant  to  imply 
that  the  system  of  self-government  in  the  colonies  was 
established  at  once  after  the  American  Revolution.  In- 
deed, for  the  time  being,  the  case  was  rather  the  con- 
trary. The  king  and  his  ministers,  attributing  the 
disaster  of  their  colonial  system  to  the  Ucense  allowed 

>  The  rejection  of  the  scheme  of  the  Albany  Congress  (1754),  re- 
jected by  both  mother  country  and  colonies;  the  recognition,  by  va- 
rious colonial  governors  of  insight,  of  the  need  of  union  and  joint 
taxation;  Governor  Pownall's  proposition  of  an  imperial  customs 
unioQ  —  may  be  reckoned  among  the  signa  of  the  times. 


268    THE  STRUCTURE  OF  THE  GOVERNMENT 

to  the  colonial  assemblies,  were  inclined  to  tighten  their 
grip  upon  their  remaining  dependencies.  The  Quebec 
Act  of  1774  estabhshed  royal  government  in  Canada 
with  no  elective  assembly,  but  only  a  council  nominated 
by  the  crown.  Even  under  Pitt's  Constitutional  Act 
of  1791  the  measure  of  liberty  granted  to  the  Canadians, 
and  intended  to  reward  the  allegiance  of  the  Loyahsts, 
consisted  only  in  the  right  to  elect  the  members  of  the 
lower  house  in  each  of  two  provinces.  The  governor, 
the  executive  council,  and  the  legislative  council  or 
upper  house,  were  all  appointed  by  the  crown.  The 
same  is  true  of  the  other  North  American  colonies. 
Those  that  already  had  partial  self-government  (as 
Nova  Scotia,  Barbados,  Jamaica,  Bermuda)  were  not 
deprived  of  it,  but  those  newly  acquired  (Trinidad, 
etc.)  were  kept  under  crown  government.  Cape  Colony, 
definitely  ceded  in  1815,  remained  under  miUtary  gov- 
ernment till  1835.  Even  then  the  civil  government 
established  was  a  nominated  and  not  an  elective  one. 
Self-government  being  out  of  the  question  in  a  penal 
settlement,  Australia  remained  long  in  direct  depend- 
ence on  the  crown.  But  the  lesson  taught  by  the 
American  Revolution  had  nevertheless  been  effective. 
As  the  new  colonies  grew  in  population  and  importance, 
the  opinion  gained  strength  that  both  justice  and  ex- 
pediency demanded  that  they  should  administer  their 
own  affairs.  Even  on  commercial  principles  it  was 
thought  that  colonial  liberty  was  more  profitable  than 
colonial  bondage.  The  doctrines  of  the  pohtical  econo- 
mists, which  became  in  the  middle  of  the  century  the 
official  creed  of  the  English  government,  brought  about 
the  establishment  of  free  trade  (1846)  and  the  repeal 
of  what  was  left  of  the  Navigation  Acts  (1849).  Already 
before  this  the  serious  rebellion  in  Canada  (1837)  and 


COLONIAL  GOVERNMENT  209 

Lord  Durham's  report,  strongly  recommending  the 
establishment  of  responsible  government,  had  called 
public  attention  to  dangers  of  the  existing  system. 
The  Act  of  Union  of  1840,  joining  Upper  and  Lower 
Canada  into  one,  introduced  as  its  sequel  the  principle 
of  parliamentary  self-government.^  Before  the  end  of 
the  next  decade  the  same  "enfranchisement"  was  ex- 
tended to  the  other  provinces  of  British  North  America 
(Nova  Scotia  and  New  Brunswick,  1848,  Prince  Edward 
Island,  1851,  and  Newfoundland,  1855),  and  to  all  the 
other  colonies  in  a  position  to  receive  it.  ^ 

It  is  interesting  and  instructive  to  observe  the  atti- 
tude adopted  in  England  towards  the  colonies  at  the 
time  of  the  grant  of  self-government,  and  in  the  period 
immediately  following.  In  the  first  place  two  great 
questions  of  paramount  interest  in  the  colonial  policy 
of  the  present  day  were  left  entirely  out  of  sight  — 
the  tariff  relations  of  the  colonies  with  the  mother 
country,  and  the  question  of  imperial  defense.  That 
the  tariff  should  have  passed  unconsidered  was  entirely 
to  be  expected  in  the  light  of  the  ideas  then  prevalent; 
indeed  the  question  seemed  to  have  settled  itself  in  the 
course  of  nature,  and  the  optimistic  free-traders  of  the 
middle  of  the  century  took  it  for  granted  that  tariff 
barriers  were  soon  destined  to  disappear  the  world  over. 
It  seemed  unnecessary,  therefore,  to  stipulate  for  free 
trade  or  any  form  of  customs  union  between  the  United 
Kingdom  and  its  dependencies.  The  other  problem, 
that  of  imperial  defense,  was  also  passed  over :  perhaps 

*  See  in  this  connection  J.  L.  Morrison,  British  Supremacy  and  Cana- 
dian Self-Government  (1919). 

*  New  Zealand  received  responsible  government  by  an  Act  of  1852 
as  interpreted  in  I80G;  New  South  Wales  and  Victoria,  1^55;  Soutii 
Australia  and  Tasmania,  1856;  Queensland,  IBSQ*  Cape  Colony,  1872; 
Western  Australia,  1890;  Natal,  1893;  Transvaal,  1903;  Orange  lliver 
Colony,  1907. 


270    THE  STRUCTURE  OF  THE  GOVERNMENT 

by  virtue  of  the  very  difficulty  of  its  solution,  perhaps 
as  a  result  of  the  sanguine  hopes  that  had  been  fostered 
in  the  peace  era.  The  policy  adopted  was  not  every- 
where approved.  DisraeU,  speaking  in  1872,  and  fore- 
seeing with  characteristic  prescience  the  difficulties 
that  must  arise,  pronounced  it  a  mistake.  "Self-gov- 
ernment," he  said,  "ought  to  have  been  conceded  as 
part  of  a  great  policy  of  imperial  consolidation.  It  ought 
to  have  been  accompanied  by  an  imperial  tariff .  .  .  and 
by  a  miUtary  code  which  should  have  precisely  defined 
the  means  and  the  reponsibilities  by  which  the  colonies 
should  be  defended,  and  by  which,  if  necessary,  this 
country  should  call  for  aid  from  the  colonies  themselves." 
But  the  real  secret  of  the  willingness  of  the  English 
people  to  leave  the  government  of  the  colonies  in  the 
hands  of  the  colonists  themselves  lay  in  the  new  view 
that  was  becoming  current  as  to  the  "manifest  destiny" 
of  the  British  colonies.^  The  example  of  the  rise  and 
progress  of  the  United  States  seemed  to  point  towards 
the  inevitable  future  of  all  great  dependencies  inhabited 
by  an  enhghtened  and  increasing  population.  Inde- 
pendence seemed  only  a  question  of  time,  and  the  duty 
of  the  mother  country  was  to  give  the  colonies  a  sound 
political  education  in  the  methods  of  responsible  gov- 
ernment, and  when  the  destined  hour  came  to  let  them 
depart  in  peace.  The  views  of  the-"httle  Englanders," 
of  the  Manchester  school  of  economists,  averse  to  large 
military  and  naval  expenditures,  cosmopolitan  in  their 
sympathies  and  sanguine  in  their  hopes  of  the  commer- 
cial unity  of  the  world,  powerfully  stimulated  public 
feeling  in  this  direction.  It  is  astonishing  at  the  present 
date  to  look  back  on  the  opinion  then  prevalent.   Sir 

>  For  interesting  details  in  this  connection  see  B.  Holland,  Imperium 
et  Libertas  (1901). 


COLONIAL  GOVERNMENT  271 

F.  Rogers  (afterwards  Lord  Blachford),  who  for  eleven 
years  was  permanent  under-secretary  for  the  colonies 
(1860-71),  wrote  at  a  later  date  (1885)  of  the  views  he 
held  in  the  following  terms:  "I  had  always  believed 
—  and  the  behef  has  so  far  confirmed  and  consolidated 
itself,  that  I  can  hardly  reali25e  the  possibiUty  of  any  one 
seriously  thinking  the  contrary  —  that  the  destiny  of 
our  colonies  is  independence:  and  that  in  this  point  of 
view  the  function  of  the  Colonial  Office  is  to  secure 
that  our  connection,  while  it  lasts,  shall  be  as  profitable 
to  both  parties,  and  our  separation,  when  it  comes,  as 
amicable  as  possible."  Such  views  were  only  too  com- 
mon in  the  period  of  colonial  history  from  1840  to  1880. 
Mr.  E.  J.  Payne,  in  his  History  of  European  Colonies 
(1877),  designed  as  an  educational  work  for  English 
schools,  wrote:  "Canada  and  Victoria  are  bound  to 
England  by  a  tie  so  shght  that  its  rupture  would  not  at 
all  be  dreaded;  and  such  a  rupture  would  hardly  be  felt 
whenever  it  happened."  Great  indeed  is  the  contrast 
between  such  a  point  of  view  and  the  sentiments  now 
entertained,  both  in  Great  Britain  and  the  colonies,  of 
the  relations  of  the  dependencies  to  the  mother  country. 
But  before  considering  the  new  imperiaUsm  and  its  p>oUt- 
ical  consequences,  it  will  be  best  to  pass  briefly  in  review 
the  varied  systems  of  government  at  present  obtaining 
in  the  colonial  possessions  of  the  United  Kingdom. 

7.  Present  British  system  of  colonial  administra- 
tion. First  let  us  consider  the  general  principles  which 
are  adopted  in  the  management  of  the  British  colonial 
possessions.  Some  persons  indeed  might  deny  that  there 
are  any  general  principles  involved;  for  it  is  contrary 
to  the  spirit  of  British  institutions  to  act  on  a  formal 
and  preconceived  plan,  and  the  method  adopted  is 
rather  an  habitual  way  of  doing  things,  based  on  the 


272    THE  STRUCTURE  OF  THE  GOVERNMENT 

teaching  of  experience,  than  a  scientific  and  complete 
system  of  administration.  The  British  system,  if  the 
word  may  be  allowed,  recognizes  no  absolute  right  of 
self-government.  It  aims,  in  the  words  of  Earl  Grey,' 
to  allow  "the  inhabitants  to  govern  themselves  when 
sufficiently  civilized  to  do  so  with  advantage,"  and, 
where  this  is  not  the  case,  to  provide  "a  just  and  im- 
partial administration  of  those  colonies  of  which  the 
population  is  too  ignorant  and  unenlightened  to  manage 
its  own  affairs."  It  is  recognized,  therefore,  that  the 
government  adopted  in  each  colony  must  be  in  accord 
with  the  particular  conditions  presented,  must  vary 
according  to  the  race,  character,  and  number  of  the 
population,  their  degree  of  enlightenment,  the  extent 
of  the  territory,  and  (as  in  the  case  of  Gibraltar)  with 
the  possible  military  importance  of  the  place  for  the 
defense  of  the  Empire.  Within  these  limits  the  princi- 
ple obtains  that  a  colonial  community  of  which  the  great 
majority  is  made  up  of  civilized  whites  shall  be  granted 
the  fullest  autonomy;  while  to  the  other  colonies  shall 
be  extended  such  a  measure  of  self-government  as 
their  circumstances  seem  rightly  to  demand.  The  prin- 
ciple of  pohtical  training  for  future  self-government, 
as  is  seen  in  the  case  of  the  elected  municipal  bodies  in 
India,  is  also  recognized.  In  the  case  of  every  colony, 
however,  the  crown  retains  a  certain  power  of  control; 
the  governor,  or  executive  head  of  the  colony,  some- 
times nominal,  sometimes  actual,  is  the  nominee  of  the 
crown;  the  crown  reserves  a  veto  on  all  colonial  legis- 
lation; the  final  court  of  appeal  for  colonial  cases  is  the 
judicial  committee  of  the  Privy  Council. 

Though  resting  on  this  general  plan,  the  governments 
of  the  British  colonies  present  the  greatest  range  of  diver- 

1  Earl  Grey,  Colonial  Policy  (1853). 


COLONIAL  GOVERNMENT  273 

eity  in  the  details  of  their  political  constitution.  Vari- 
ous classifications  have  been  ofifered,  of  which  the  most 
satisfactory  seems  to  be  the  separation  first  of  all  into 
three  classes — the  crown  colonies,  the  representative 
colonies,  the  responsible  colonies.  The  crown  colonies 
are  those  which  have  no  self-government;  the  represen- 
tative colonies  are  those  which  have  partial  self-govern- 
ment; the  responsible  colonies  are  those  which  have 
complete  self-government.  These  three  divisions  may 
be  taken  to  indicate,  not  only  the  classification  of  the 
dependencies  at  any  particular  time,  but  also  the  stages 
through  which  a  British  colony  passes  in  the  upward 
progress.  Canada,  as  has  been  seen,  was  a  crown  colony 
from  its  conquest  until  1791,  a  representative  colony 
until  the  Act  of  1840,  and  since  then  a  responsible  colony. 
In  the  first  of  these  divisions,  the  crown  colonies 
(with  which  also  the  various  protectorates  are  to  be 
included),  are  comprised  all  those  dependencies  whose 
governing  officials  are  all  nominated  by  the  crown. 
The  Ust  includes  the  Straits  Settlements,  Hong  Kong, 
Fiji,  Trinidad,  Sierra  Leone,  Honduras,  Gibraltar,  St. 
Helena,  and  many  other  places.  Within  the  group,  how- 
ever, various  degrees  of  dependence  on  the  home  gov- 
ernment are  found.  In  the  places  of  great  military 
and  naval  importance  (Gibraltar,  St.  Helena)  and  in 
dependencies  containing  but  few  white  people,  the  con- 
trol of  the  crown  is  complete;  the  nominated  officials 
are  appointed  directly  by  the  home  government,  and 
sent  out  to  the  colony.  In  Gibraltar  the  whole  legis- 
lative and  executive  authority  is  vested  in  the  com- 
mander-in-chief, who  is  also  governor.  In  other  posses- 
sions, representing  a  higher  stage  of  colonial  evolution, 
and  which  contain  a  considerable  element  of  white,  or  at 
least  of  educated  native  inhabitants,  the  control  of  the 


274    THE  STRUCTURE  OF  THE  GOVERNMENT 

crown  is  less  direct.  In  British  Honduras,  for  example, 
the  administration  (1920)  is  conducted  by  a  governor 
with  a  nominated  executive  council  of  six  members,  and 
a  legislative  council  consisting  of  five  ofl&cial  and  seven 
unofficial  members.  The  government  of  Hong  Kong 
approaches  still  more  nearly  to  being  representative. 
The  governor  has  as  his  executive  council  a  nominated 
body  of  eight  members,  six  of  whom  (the  secretary, 
the  officer  commanding  the  troops,  the  treasurer,  the 
attorney-general,  the  secretary  for  Chinese  affairs,  and 
the  director  of  public  works)  hold  their  positions  ex 
officio.  There  is  in  addition  a  legislative  council  com- 
posed of  the  same  ex-officio  members  together  with  the 
captain-superintendent  of  police  and  six  unofficial  mem- 
bers —  four  appointed  by  the  crown  (two  of  these  being 
Chinese),  one  nominated  by  the  Chamber  of  Commerce, 
and  one  by  the  local  justices  of  the  peace.  Such  a  body, 
it  will  be  observed,  stops  just  short  of  the  principle  of 
popular  election.  The  details  here  given  are  not  of  im- 
portance in  themselves,  but  are  intended  to  show  the 
careful  grading  of  the  British  colonial  government. 

The  representative  colonies  are  those  in  whose  gov- 
ernment the  principle  of  election  has  been  introduced, 
without,  however,  being  allowed  to  predominate.  To 
this  class  belong  Ceylon,  Jamaica,  Mauritius,  the  Baha- 
mas, Barbados,  British  Guiana,  Bermuda,  etc.  Here 
again  two  degrees  of  relative  dependence  may  be  dis- 
tinguished. In  some  of  them  (as  Mauritius  and  Jamaica) 
the  legislature  consists  of  a  single  body,  a  part  of  whose 
members  are  nominated  and  the  rest  elected;  in  others 
(as  Barbados)  the  legislature  consists  of  two  houses,  one 
entire  house  being  elected  by  the  people.  But  in  all  the 
representative  systems  the  officers  of  the  executive  are 
nominated,  and  the  parliamentary  system  of  govern- 


COLONIAL  GOVERNMENT  275 

ment  does  not  obtain.  The  legislature  (Council  of 
Government)  of  Mauritius,  made  up  of  the  governor, 
eight  ex-officio  members,  with  nine  nominated  by  the 
governor  and  ten  elected  members,  is  typical  of  the  first 
class.  Barbados  illustrates  the  second  and  more  ad- 
vanced type;  it  has  a  bicameral  legislature,  the  upper 
house  (Legislative  Council)  composed  of  nine  members 
nominated  by  the  crown,  and  the  lower,  or  House  of 
Assembly  (twenty-four  members),  being  elected  an- 
nually by  the  people. 

At  the  apex  of  the  system  stand  the  really  self-gov- 
erning, the  responsible  colonies,  whose  governments 
are  modeled  on  that  of  the  United  Kingdom  itself. 
These  include  Canada,  Newfoundland,  Australia  (now 
federated).  New  Zealand,  and  the  Union  of  South  Africa. 
The  last-mentioned  government  was  constituted  under 
the  South  Africa  Act  of  1909  and  includes  the  provinces 
of  the  Cape  of  Good  Hope,  Natal,  the  Transvaal,  and 
the  Orange  Free  State.  ^  The  combination  thus  formed 
is  not  a  federation,  but  is  unitary  in  structure.  The 
responsible  colonies  enjoy  a  virtual  independence. 
Their  governments  have  been  created,  as  already  seen 
in  the  case  of  Canada  and  Australia,  by  statutes  of  the 
British  Parliament  which  are  practically  equivalent  to 
written  constitutions.  With  the  exception  of  the  nomi- 
nation of  the  governor-general  (or  governor,  as  the 
case  may  be),  the  reservation  of  the  power  of  disallowing 
colonial  statutes,  and  the  retention  of  the  judicial  com- 
mittee of  the  Privy  Council  as  the  final  court  of  appeal, 
the  home  government  withdraws  from  any  internal  con- 
trol of  the  self-governing  colonies.   It  must,  however, 

*  Note  that  the  older  designation  "Orange  Free  State"  (the  name 
for  forty-six  years  of  the  independent  republic),  which  had  been  al- 
tered to  "Orange  River  Colony"  after  the  South  African  War,  la 
reetored. 


276    THE  STRUCTURE  OF  THE  GOVERNMi^NT 

be  distinctly  understood  that  in  point  of  law  this  self- 
effacement  of  the  imperial  government  is  only  operative 
at  the  pleasure  of  Parliament.  The  claim  has  indeed 
been  raised  in  Canada  that  the  grant  to  the  Dominion 
Parliament  of  "exclusive  legislative  authority"  over 
the  matters  enumerated  in  the  British  North  America 
Act  was  "exclusive"  of  the  authority  of  the  Imperial 
Parliament  itself.  Such  a  contention  is  at  variance  with 
the  very  basis  of  the  British  constitution,  and  cannot  for 
a  moment  be  accepted.  But  unless  and  until  a  statute 
of  ParUament  allows  it,  neither  the  crown  nor  any  other 
authority  in  the  mother  country  has  any  power  over  the 
colonies  beyond  that  reserved  in  the  constituent  acts. 

These  colonies  are  thus  left  free  to  manage  their  own 
internal  concerns.  This  includes  the  very  important 
privilege  of  making  their  own  tariff.  All  of  the  autono- 
mous colonies  have  availed  themselves  of  this,  and  have 
erected  protective  tariffs  against  the  trade  of  the  mother 
country.  It  is  true  that  a  system  of  preferential  duties 
in  favor  of  Great  Britain  (beginning  with  the  Canadian 
Tariff  of  1897)  has  been  estabUshed  in  the  Dominions. 
But  it  was  long  the  case  that  the  colonial  tariffs  placed 
British  goods  in  the  same  position  as  those  of  a  foreign 
country.  The  colonies  have  not  the  power  to  conclude 
treaties  with  foreign  states,  but  it  has  been  the  custom 
of  Great  Britain,  in  negotiating  treaties  affecting  im- 
mediately the  greater  colonies,  to  give  a  ready  hearing 
to  the  wishes  of  her  colonial  subjects.  "It  is  an  imder- 
standing  or  even  maxim  of  the  policy  governing  the  rela- 
tions between  England  and  the  Canadian  Dominion," 
wrote  the  late  Sir  John  Bourinot,  a  leading  authority  on 
the  government  of  Canada,  "that  Canadian  representa- 
tives shall  be  chosen  and  clothed  with  all  necessary  au- 
thority by  the  Queen  in  council  to  arrange  treaties  im- 


COLONIAL  GOVERNMENT  277 

mediately  affecting  Canada,  and  all  such  treaties  must 
be  ratified  by  the  Canadian  Parliament."  The  form 
of  government  prevalent  in  the  responsible  colonies  ia 
virtually  the  same  as  in  England,  except  that  the  exist 
ence  of  the  constituent  statutes  introduces  everywhere 
the  principle  of  constitutional  Umitations  analogous  to 
what  is  found  in  the  United  States.  The  governor  exer- 
cises a  nominal  authority  similar  to  that  of  the  crown. 
The  real  executive  is  the  prime  minister  and  his  cabinet, 
whose  tenure  of  power  is  dependent  upon  the  continued 
support  of  the  majority  of  the  lower  house.  The  Cana- 
dian Senate  is  a  nominated  body  of  hmited  members, 
but  the  nominations  are  made  on  the  advice  of  the  min- 
istry, and  not,  as  in  the  representative  colonial  councils, 
at  the  pleasure  of  the  crown.  The  same  is  true  of  the 
legislative  councils  of  New  Zealand  and  Newfoundland. 
The  upper  house  of  Austraha  is  elective,  and  the  Senate 
of  South  Africa  partially  so.^ 

India,  whose  conditions  are  altogether  unique,  stands 
apart  from  the  rest  of  the  British  colonial  system.  Here 
a  vast  population,  numbering  well  over  three  hundred 
miUions  and  presenting  the  widest  varieties  of  racial 
character,  customs,  and  creeds,  are  more  or  less  under 
the  control  of  the  United  Kingdom.  About  seventy 
millions  of  these  are  found  in  the  semi-independent  na- 
tive states,  the  rest  fall  under  the  government  of  what  is 
technically  called  British  India.  The  government  of  In- 
dia is  divided  between  the  home  authorities,  the  central 
government  in  India,  and  the  subordinate  or  provincial 
governments.  At  the  head  of  the  home  government  is 
the  crown,  acting  through  the  Secretary  of  State  for  In- 
dia.  With  this  secretary  is  adjoined  a  special  council 

'  An  admirable  account  of  the  government  of  South  Africa  is  found 
in  R.  H.  Brand,  The  Union  of  South  Africa  (1909). 


278    THE  STRUCTURE  OF  THE  GOVERNMENT 

composed  for  the  most  part  of  former  residents  in  India, 
appointed  for  seven  years,  and  not  eligible  to  sit  in  Par- 
liament. The  expenditure  of  the  Indian  revenue  must 
be  sanctioned  by  the  secretary  and  a  majority  of  the 
council.  All  other  business  done  in  the  United  Kingdom 
in  reference  to  India  is  conducted  by  means  of  the  coun- 
cil, but  in  some  matters  of  a  diplomatic  character,  as  in 
dealings  with  native  states,  the  secretary  may  act  alone. 
In  India  itself,  the  supreme  executive  power  hes  in  the 
governor-general,  or  viceroy,  who  is  appointed  by  the 
crown.  He  has  an  executive  council,  which  includes  the 
commander-in-chief  and  the  highest  officials.  For  legis- 
lative purposes,  the  council  is  increased  by  other  mem- 
bers appointed  by  the  viceroy  or  elected  under  the  In- 
dian Councils  Act  of  1909.  The  provincial  governments, 
under  governors  (appointed  by  the  crown)  or  heuten- 
ant-govemors  (appointed  by  the  governor-general)  or 
chief  commissioners  (appointed  by  the  governor-general 
in  coimcil)  assisted  by  councils,  are  similar  in  construc- 
tion to  the  central  government.  The  legislative  councils 
of  the  province,  like  the  legislative  council  of  India,  con- 
tain a  minority  element  of  elected  members.  There  is 
thus  as  yet  but  little  attempt  at  self-government  in 
either  the 'central  or  provincial  administration  of  British 
India.  In  the  municipal  governments  (by  virtue  of  acts 
of  ParUament,  1883-84),  the  elective  principle  has  been 
introduced.  Over  the  native  states  Britain  exercises  a 
varying  degree  of  control.  They  contain  no  British  offi- 
cials, except  ah  advisory  resident;  they  raise  their  own 
armies.  But  they  can  hold  no  diplomatic  intercourse 
with  one  another  or  with  the  outside  world,  and  have  no 
right  to  make  war  or  peace.  Britain  also  reserves  the 
penalty  of  dethronement  as  a  punitive  power  over  the 
native  princes. 


CC«LONIAL  GOVERNMENT  279 

8.  Imperial  federation.  The  question  of  greatest  in- 
terest in  connection  with  the  large  self-governing  colo- 
nies of  Great  Britain  is  their  political  future.  The  idea 
of  their  "manifest  destiny"  as  independent  states,  prev- 
alent fifty  years  ago,  receded  into  the  background  in 
the  closing  years  of  the  nineteenth  century.  New  forces 
came  into  play.  The  economic  expansion  of  the  great 
industrial  states  demanded  constantly  new  markets  and 
new  control  of  raw  materials.  A  wave  of  "imperialism" 
swept  over  Europe.  Africa  was  partitioned  among  the 
Great  Powers.  Large  parts  of  Asia  were  brought  directly 
or  indirectly  under  European  control.  The  doctrine  of 
the  "white  man's  burden,"  to  some  a  creed  and  to  others 
a  cloak,  became  the  word  of  the  hour.  The  day  of  large 
empires  replaced  the  dream  of  a  world  of  httle  com- 
munities always  at  peace.  The  dissolution  of  the  Brit- 
ish Empire  would  have  meant  the  downfall  of  Great 
Britain. 

Under  such  circumstances  the  current  of  British  pub' 
lie  opinion  turned.  The  permanent  unity  of  the  Empire 
appeared  now  as  the  supreme  goal.  The  end  to  be  at- 
tained was  clear,  but  the  means  obscure.  The  establish- 
ment of  the  Imperial  Federation  League  (1884)  and  its 
wide  initial  success  marks  the  opening  of  an  era.  The 
League  advocated  a  pan-imperial  parhament  and  unified 
imperial  defense.  But  this  meant  pan-imperial  taxes. 
The  colonies  would  have  none  of  them  and  the  League 
expired  (1893).  Meantime  in  indirect  ways  the  existing 
imperial  union  was  strengthened.  The  Colonial  Con- 
ferences ^  (1887,  1897,  etc.)  developed  from  irregular 
pageantry  into  something  approaching  a  Council  of  Em- 
pire. The  name  Imperial  Conference  was  adopted  (1907) 

1  For  a  complete  history  see  R.  Jebb,  The  Imperial  Conference 
(1911). 


280    THE  STRUCTURE  OF  THE  GOVERNMENT 

and  the  meetings  made  regular.  Australia  and  New 
Zealand  subsidized  an  Australasian  squadron  of  the 
British  Navy.  But  the  growing  feehng  of  a  distinctive 
national  hfe  in  each  of  the  greater  colonies  precluded 
anything  hke  a  re-absorption  of  the  Dominions  into  the 
British  system.  The  increasing  danger  of  a  war  with 
Germany  quickened  the  movement.  Two  distinct  cur- 
rents of  opinion,  more  or  less  divergent,  though  both 
moving  towards  permanent  unity,  became  apparent. 
Some  people  advocated  the  dehberate  institution  of  a 
federal  imperial  representative  government  with  a  cor- 
responding degradation  of  the  existing  governments  of 
Great  Britain  and  the  Dominions.  It  was  urged  that 
this  would  produce  a  maximum  of  defensive  strength  and 
a  true  guarantee  of  pennanent  union.  ^  Others  claimed 
that  such  a  union  was  contrary  to  the  spirit  of  the  Em- 
pire. They  proposed  that  the  Empire  should  be  viewed 
henceforth  as  a  united  group  of  "nations  in  alhance" 
acting  together  in  war  and  working  together  in  peace, 
but  always  on  a  basis  of  voluntary  cooperation.  The 
havoc  that  such  a  doctrine  made  of  legal  theories  of 
sovereignty  and  of  the  formal  basis  of  British  rule  was 
presumed  to  be  offset  by  the  fact  that  it  corresponded  to 
what  was  really  taking  place.  ^ 

The  events  of  the  war  have  entirely  changed  the  out- 
look. All  proposals  for  formal  federation  and  for  a  su- 
preme parhament  and  for  pan-imperial  taxes  are  drifting 
into  the  background  of  academic  discussion.  The  argu- 
ment that  formal  union  is  necessary  for  defense  is  now 
met  by  the  fact  that  defense  was  carried  on  without 
union.  The  admission  of  the  Dominions  to  membership 

•  For  this  whole  project  see  L.  Curtis,  The  Problem  of  the  Common- 
vxaUh  (1916). 

*  See  in  this  cODnectioo  R.  Jebb,  The  Britannic  Question  (1913). 


COLONIAL  GOVERNMENT  281 

in  the  League  of  Nations  elevates  them  with  a  peculiar 
status  in  which  they  seem  to  be  independent  in  all  but 
name  and  form.  At  the  same  time  the  increasing  realiza- 
tion throughout  all  British  countries  of  the  strong  ele- 
ment of  stability  offered  in  a  troubled  world  by  union 
under  the  crown  rules  out  of  discussion  all  question  of 
the  establishment  of  independence  in  the  republican 
form. 

9.  Recent  colonial  expansion  of  European  states. 
But  it  is  now  necessary  to  describe  in  some  detail  colo- 
nial expansion  in  recent  times  of  the  other  great  states 
of  Europe,  and  the  methods  they  have  adopted  in  the 
administration  of  their  dependencies.  Since  the  year 
1880  the  territorial  area  claimed  by  the  Great  Powers  as 
their  dependencies  has  vastly  increased.  The  available 
parts  of  Asia,  and  the  unclaimed  islands  of  the  Pacific 
have  fallen  into  European  hands;  the  largest  prey  has 
been  found  in  the  continent  of  Africa,  which  has  practi- 
cally been  parceled  out  among  the  great  states.  France, 
which  had  commenced  the  conquest  of  Algiers  as  early 
as  1830,  has  extended  its  possessions  in  North  Africa, 
and  at  the  opening  of  the  Great  War  held  not  only  all 
Algeria,  but  Tunis,  the  Sahara,  Wadai,  S^n^gal,  French 
Guinea,  the  Ivory  Coast,  Dahomey,  French  Congo,  etc. 
This  territory  includes  nearly  all  of  the  desert,  the  larger 
part  of  the  valley  of  the  Niger,  and  Central  Africa  north 
of  the  Congo.  The  island  of  Madagascar  was  seized  in 
1895.  France  has  also  (beginning  in  1861)  obtained  a 
large  part  of  Indo-China  (forming  the  dependencies  of 
Cochin  China,  Tonkin,  Annam,  and  Cambodia).  The 
French  dependencies  in  1914  included  in  all  an  area  of 
about  4,000,000  square  miles,  and  a  population  of  44,- 
600,000  people.  As  the  larger  part  of  this  area  is  occu- 
pied by  an  uncivilized  native  population  (in  Madagas- 


282    THE  STRUCTURE  OF  THE  GOVERNMENT 

car,  for  example,  there  were  in  1917  some  fifteen  thou- 
sand French  in  a  population  of  3,545,264),  it  has  re- 
mained to  a  great  extent  either  under  military  govern- 
ment (as  in  Central  Africa)  or  under  appointed  officials 
with  miUtary  support  (Madagascar,  and  Indo-China). 
Where  possible,  however,  in  the  older  colonies  of  France 
self-government  is  introduced;  Martinique  and  Guade- 
loupe have  each  elected  councils;  so  too  has  New  Cale- 
donia in  the  South  Pacific.  Algeria  is  governed  as  part  of 
France,  being  divided  into  departments  and  represented 
in  the  Senate  and  in  the  Chamber  of  Deputies.  No- 
where has  more  thought  been  directed  to  the  theory  of 
colonial  government  than  in  France,  a  large  part  of  the 
theoretical  hterature  of  recent  times  on  the  subject  be- 
ing French.  In  spite  of  the  fact  that  the  maintenance  of 
the  new  colonial  system  proves  a  heavy  burden  on  the 
French  exchequer,  the  dream  of  a  colonial  empire  per- 
sists. It  is  characteristic  of  the  French  people,  that  while 
the  English  still  keep  their  vast  colonial  possessions  un- 
represented in  the  Parliament  of  the  mother  country, 
France  has  already  adopted  the  principle  of  colonial 
representation.  Cochin  China,  French  India  (Pondi- 
cherry  and  four  other  towns),  Guiana,  and  S6n6gal  each 
elect  one  deputy;  Guadeloupe,  Martinique,  and  Re- 
union each  elect  two.  These  last  three,  as  well  as  French 
India,  are  represented  by  one  senator  each. 

Under  the  terms  of  the  Peace  Treaty  of  1919  the 
colonial  control  of  France  was  still  further  extended. 
Togoland  and  the  Cameroons,  formerly  part  of  the 
German  colonial  empire,  were  divided  between  Great 
Britain  and  France. 

At  the  time  of  the  outbreak  of  the  Great  War  the 
German  Empire  was  in  possession  of  a  vast  colonial 
domain.    The  expansion  of  Germany,  which  began 


COLONIAL  GOVERNMENT  283 

about  1884,  had  taken  the  form  of  establishing  "pro- 
tectorates" and  "spheres  of  influence,"  rather  than  co- 
lonial establishments  in  the  true  sense.  The  territory 
thus  brought  into  dependence  on  the  German  Empire 
amounted  to  one  million  square  miles.  Most  of  it  was 
in  Africa,  and  was  made  up  of  Togoland,  the  Came- 
roons,  German  South- West  Africa,  German  East  Africa, 
etc.  Germany  possessed  also  the  very  valuable  port  of 
Kiaochow  (nominally  leased  from  China)  and  a  large 
part  of  the  island  of  Papua,  together  with  smaller  is- 
lands in  the  Pacific.  The  administration  of  these  terri- 
tories, carried  on  by  imperial  governors,  commissioners, 
secretaries,  etc.,  was  similar  to  that  of  a  British  crown 
colony  of  the  primary  type.  There  was  scarcely  any 
European  population.  Under  the  terms  of  the  Treaty  of 
Versailles  in  1919  the  German  overseas  dependencies 
were  transferred  to  the  control  of  various  Great  Powers. 
South- West  Africa  was  placed  under  the  Union  of  South 
Africa;  German  East  Africa,  divided  between  the  control 
of  Belgium  and  Great  Britain;  Togoland  and  the  Cam- 
eroons,  between  that  of  France  and  Great  Britain;  the 
Pacific  islands  were  placed  under  Great  Britain  and 
Japan,  and  Kiaochow  transferred  to  Japan.  Italy  also 
has  estabhshed  African  dependencies  (Eritrea,  ItaUan 
SomaU  Land)  whose  general  character  and  whose  ad- 
ministration are  similar  to  those  of  Germany.  The 
colonial  possessions  of  the  Netherlands,  though  not 
attributable  to  the  recent  European  expansion,  are  of 
great  wealth  and  importance.  Their  population  out- 
numbers that  of  the  mother  country  in  the  ratio  of  eight 
to  one,  although  of  the  forty-seven  million  inhabitants 
less  than  one  hundred  thousand  are  white.  The  elective 
principle  is  nowhere  in  use.  The  governor  of  the  Dutch 
East  Indies,  the  members  of  his  assistant  council,  and 


284    THE  STRUCTURE  OF  THE  GOVERNMENT 

•the  provincial  "residents"  and  district  "controllers" 
■are  all  appointed  officials.  The  administration  of  the 
colony,  however,  must  be  in  accord  with  the  principles 
laid  down  in  a  Dutch  statute  of  1854,  for  the  "govern- 
ment of  Netherlands  India." 

10.  The  dependencies  of  the  United  States.  The  most 
recent  chapter  in  the  history  of  colonial  expansion  is 
offered  by  the  acquisition  on  the  part  of  the  United 
States  of  a  number  of  dependent  territories.  The  Ha- 
waiian Islands,  annexed  in  1898,  may  be  passed  over; 
admitted  to  territorial  status  (1900)  and  having  a  gov- 
ernment similar  to  that  of  the  other  territories  of  the 
United  States,  they  are  not  to  be  looked  upon  as  a  de- 
pendency. But  the  case  is  different  with  the  islands 
acquired  by  cession  from  Spain  (1898),  as  the  result 
of  the  Spanish-American  War  (Porto  Rico,  the  PhiUp- 
pines,  Guam),  and  with  Tutuila,  Manua,  etc.,  in  the 
Samoan  group,  annexed  in  1899  at  the  request  of  their 
inhabitants.  Porto  Rico,  under  the  Organic  Act  of 
April  12,  1900,  was  controlled  by  a  governor  and  an  ex- 
ecutive council  appointed  by  the  President  of  the  United 
States,  and  a  legislature  of  which  the  lower  house  was 
elected  by  the  people,  while  the  upper  house  consisted  of 
the  executive  council.  Of  this  branch  of  the  legislature 
at  least  five,  out  of  a  total  of  eleven,  had  to  be  natives  of 
the  island.  The  principle  here  adopted,  of  forming  a 
legislative  body  by  using  an  executive  council  contain- 
ing a  number  of  natives,  resembles  somewhat  the  sys- 
tem already  described  as  used  in  the  government  of 
British  India,  A  still  more  Uberal  form  of  government 
was  instituted  by  an  Act  of  1916  under  which  the  entire 
legislature  (Senate  and  House  of  Representatives)  is 
elected  by  the  people. 

The  government  of  the  Philippine  Islands  has  now 


COLONIAL  GOVERNMENT  285 

passed  the  constructive  stage.  For  some  time  after  the 
defeat  of  Spain,  and  even  after  the  formal  cession  of 
the  islands,  the  administration  remained  in  the  hands 
of  the  military  authorities.  This  was  superseded  by- 
civil  government  (July  1,  1901)  vested  in  a  commission 
of  officials  nominated  by  the  President.  An  Act  of 
Congress  (July,  1902)  validated  the  creation  of  the 
civil  government  thus  estabUshed,  and  the  exercise  of 
power  granted  to  it  by  executive  order.  The  same  act 
contained  a  general  bill  of  rights  as  a  guarantee  of  in- 
dividual hberty  and  provided  for  the  sunamoning  of  an 
elected  legislature  after  the  pacification  of  the  islands 
and  the  completion  of  a  census.  The  executive  govern- 
ment was  put  in  the  hands  of  a  civil  governor  (desig- 
nated later  governor-general)  and  seven  commissioners 
(increased  in  1908  to  eight),  four  being  Americans  and 
three  Filipinos.  All  these  officials  were  appointed  by  the 
President  of  the  United  States.  The  commission  acted 
also  as  an  upper  house,  the  lower  consisting  of  an 
elected  assembly.  An  Act  of  1916  abohshed  the  Philip)- 
pine  Commission  and  set  up  an  elected  Senate  and 
House  of  Representatives.  Under  its  provisions  the 
governor-general,  a  vice-governor,  and  auditor  and  a 
deputy  auditor  are  appointed  by  the  President  of  the 
United  States.^ 

The  acquisition  of  the  above  dependencies  by  the 
United  States  has  occasioned  in  recent  years  a  vast 
amount  of  discussion.  It  has  been  a  matter  of  earnest 
debate  as  to  whether  the  acquisition  of  such  distant 
insular  territory  as  the  Philippines,  peopled  by  races 
altogether  alien,  in  part  uncivilized,  and  in  part  openly 
hostile,  was  either  just  or  profitable.  Even  the  consti- 
tutionality of  such  a  proceeding  was  widely  denied. 

>  The  Philippine  Legialature  elects  two  Resident  Commissioners  to 
the  United  States. 


286    THE  STRUCTURE  OF  THE  GOVERNMENT 

The  last  question  has  been  set  at  rest  by  the  interpretit- 
tion  of  the  courts,  and  by  the  overwhehning  force  of  ac- 
complished fact.  The  plain  truth  is  that  at  the  making 
of  the  Constitution,  the  acquisition  of  such  territory  as 
the  Philippines  was  not  considered,  either  one  way  or 
the  other.  The  result  is  that  in  reality  the  Constitu- 
tion has  nothing  to  say  about  it.  But  the  convenient 
doctrine  of  impUed  powers  has  been  made  to  meet  the 
case.  The  question  involving  the  keenest  discussion 
was  that  of  the  tariff.  It  was  held  by  many  that  the 
provision  of  the  Constitution  that  the  tariff  must  be 
uniform  throughout  the  United  States  prevented  Con- 
gress from  making  a  tariff  barrier  between  the  Repub- 
lic and  its  new  dependencies.  The  Supreme  Court,  how- 
ever, in  the  Insular  Cases  of  1901,  has  decided  that  this 
is  not  the  case.  As  a  consequence  Congress  is  held  to 
have  complete  power  to  establish  between  the  United 
States  and  its  dependencies  either  free  trade  or  a  tariff 
system  as  it  sees  fit. 

It  may  be  observed,  in  conclusion,  that  the  tendency 
of  the  United  States  in  dealing  with  its  dependencies 
has  been  to  proceed  further  in  the  direction  of  popular 
government  than  English  experience  would  warrant. 
It  has  been  difficult  for  Americans,  in  whose  minds  the 
principle  of  popular  government  has  always  assimied  a 
more  sharply  theoretical  form  than  is  current  with  the 
Enghsh,  to  reconcile  themselves  to  the  "possession"  of 
a  dependent  community.  Common  sense  has  shown  the 
impossibility  of  governing  the  Philippine  Islands  on 
the  same  plan  as  Massachusetts  or  California.  Yet  the 
positive  assertion  of  the  Declaration  of  Independence 
that  "all  men  are  created  equal "  read  a  Uttle  awkwardly 
in  connection  with  the  government  of  a  group  of  islands 
by  a  commission  sent  to  them  from  a  distant  countrj'^ 


COLONIAL  GOVERNMENT  287 

and  with  the  exclusion  of  the  unchristian  tribes  from  its 
future  governance.  But  as  usual  the  brute  force  of  cir- 
cumstances proves  too  strong  for  abstract  theory,  even 
when  clothed  with  the  historic  authority  of  the  Declar- 
ation of  Independence. 

READINGS  SUGGESTED 

Egerton,  H.  E.,  Short  History  of  British  Colonial  PoUcy  (1897), 

bk.  II. 
Burke,  Edmund,  Speech  on  Conciliation  (1775). 
Curtis,  L.,  The  Problem  of  the  CommomoeaUh  (1916),  chaps. 

XX,  XXI. 

Kimball,  E.,  The  National  Government  of  the  United  States 
(1920),  chap.  XXI. 

FURTHER  AUTHORITIES 

Lewis,  Sir  G.  C,  Government  of  Dependencies  (4841). 
Todd,  A.,  Parliamentary  Government  in  British  Colonies  (1880). 
Zimmermaim,  A.,  Die  Europdischen  Kolonien  (4  vols.,  1896). 
Arnold,  W.  T.,  Roman  System  of  Provincial  Administration 

(1879). 
Hall,  D.,  The  British  Commonwealth  of  Nations  (1920). 
Bancroft,  G.,  History  of  the  United  States  (1834-74). 
Lodge,  H.  C,  Short  History  of  the  English  Colonies  in  America 

(1881). 
Ridges,  E.  A.,  Constitviional  Law  of  England  (1905),  part  vi. 
Seeley,  Sir  J.  R.,  Expansion  of  England  (1883). 
Pownall,  T.,  Administration  of  the  Colonies  (1764). 
Reinsch,  P.  S.,  Colonial  Government  (1902). 
Leroy-Beaulieu,  De  la  Colonisation  chez  les  Peuples  Modemea 

(1902). 
Morris,  The  History  of  Colonisation  (1902). 
Willoughby,  W.  F.,  Territories  and  Dependencies  of  the  United 

States  (1905). 
Beer,  G.,  The  Old  Colonial  System,  part  i  (1912). 
Keith,  A.  B.,  Responsible  Government  in  the  Dominions  (1912). 
Keith,  A.  B.,  Imperial  Unity  and  the  Dominions  (1916). 
Morison,  J.  L.,  British  Supremacy  and  Canadian  Self-Govern^ 

meni  (1919). 


CHAPTER  VII 
LOCAL  GOVERNMENT 

1.  Local  and  central  government  distinguished  —  2.  Areas  of  local 
government;  the  United  States,  France,  England  —  3.  Composition 
and  powers  of  local  governing  bodies;  the  United  States  —  4.  Eng- 
land—  5.  France  —  6.  Prussia  —  7.  Local  taxation;  the  property 
tax  of  the  United  States  —  8.  Systems  of  local  taxation  in  other 
countries  —  9.  Reform  of  the  American  system. 

I.  Local  and  central  government  distinguished. 
Hitherto,  our  discussion  of  the  structure  of  government 
has  been  confined  to  the  consideration  of  those  govern- 
ing bodies  whose  authority  extends  over  the  whole 
state.  But  in  all  but  the  very  smallest  communities 
these  are  not  the  sole  organs  of  administration.  There 
exists  in  addition  a  number  of  officials  and  official  bod- 
ies, whose  functions  extend  over  only  a  portion  of  the 
total  territorial  area  of  the  state.  These  bodies,  and  the 
duties  that  they  perform,  are  spoken  of  under  the  gen- 
eral designation  of  "local  government."  Local  govern- 
ment, therefore,  will  refer  to  the  operations  of  all  town- 
ship and  county  coimcils,  the  governing  bodies  of  munic- 
ipahties,  districts,  etc.  The  common-sense  meaning  of 
the  term  is  quite  clear,  but  the  definition  of  local  and 
central  government,  in  exact,  precise  form,  is  not  so 
easy.  For  it  is  to  be  observed  that  not  all  the  governing 
bodies  whose  power  extends  only  to  a  point  of  the  state 
are  to  be  classed  as  organs  of  local  government; 
for  otherwise  this  would  include  the  component  parts 
of  a  federal  state,  which  is  contrary  to  the  evident  sig- 
nification intended.  The  state  authorities  of  New  York 
or  Massachusetts  are  not  organs  of  local  government. 
Nor  does  the  distinction  lie  in  the  extent  of  territory 


LOCAL  GOVERNMENT  289. 

covered,  nor  in  the  number  of  persons  ruled  over.  The 
municipal  government  of  New  York  or  Boston,  or  the 
county  council  of  Lancashire,  exercises  its  authority 
over  a  vastly  greater  number  of  people  than  does  the 
government  of  the  State  of  Nevada;  on  the  other  hand, 
in  extent  of  territory,  the  principality  of  Monaco,  which 
occupies  eight  square  miles,  is  not  a  local  government 
at  all,  though  far  less  in  area  than  any  French  depart- 
ment. The  difference  between  local  and  central  govern- 
ment is  not,  therefore,  a  matter  of  area  or  of  population. 

The  distinction  Hes  partly  in  their  relative  constitu- 
tional positions,  and  partly  in  the  respective  nature  of 
the  public  services  performed.  In  regard  to  the  first 
point,  it  is  true  of  most  independent  states  that  the  local 
government  derives  its  powers  from  the  central  govern- 
ment, and  holds  them  at  the  pleasure  of  the  latter.  This 
is  the  case,  whether  or  not  there  is  a  written  constitution. 
In  France  and  in  Italy,  each  of  which  has  a  written  con- 
stitution, the  organization  of  the  local  government  is  en- 
tirely under  the  control  of  the  central  parliament.  It  is 
for  this  reason  that  we  do  not  think  of  the  Swiss  cantons 
or  the  "states"  of  the  United  States  as  organs  of  local 
government;  for  these  component  parts  of  a  federal 
system  are,  within  the  sphere  of  their  own  competence, 
quite  independent  of  the  central  federal  authority.  But 
the  distinction  thus  made  is  not  universally  true. 
Though  it  applies  to  nearly  all  independent  states,  it  is 
not  the  case  with  the  organs  of  local  government  (town- 
ships, county,  and  municipal  authorities)  in  the  separate 
Commonwealths  of  the  United  States.  These  certainly 
are  organs  of  local  government,  and  yet  to  a  great  ex- 
tent they  exist  by  virtue  of  the  state  constitution,  and 
could  not  be  put  out  of  existence  at  the  will  of  the  state 
legislature. 


290    THE  STRUCTURE  OF  THE  GOVERNMENT 

The  other  point  of  distinction  between  local  and  cen- 
tral government  consists  in  the  different  nature  of  the 
services  accomplished.  This  requires  some  further  ex- 
planation. The  various  functions  performed  by  the 
agencies  of  the  state  for  the  benefit  of  the  citizens  will 
roughly  fall  into  two  classes.  Some  of  them  will  be  in 
the  interest  of  the  community  generally,  and  the  benefit 
thereby  effected  will  not  be  assignable  to  any  single  part 
of  the  country.  For  example,  the  protection  afforded 
by  the  army  and  navy,  whereby  foreign  conquest  is  pre- 
vented, is  a  benefit  shared  by  all  the  inhabitants  alike. 
The  same  will  be  true  of  all  the  large  class  of  public 
works,  the  advantage  and  purpose  of  which  may  be  said 
to  be  national.  There  will  also  be  a  number  of  regula- 
tive functions  to  be  performed  —  the  institution  of  the 
criminal  law,  the  control  of  marriage  and  divorce,  law 
regulating  contracts,  sales,  etc.,  all  of  which,  to  be  effec- 
tive, must  be  uniform.  The  whole  class  of  functions  thus 
indicated  will  properly  fall  within  the  province  of  the 
central  government.  But  in  addition  to  these,  there  are 
other  state  activities  (for  it  must  be  recollected  that 
both  local  and  central  government  form  a  part  of  the 
organization  of  the  state)  of  quite  a  different  character. 
Here  the  benefit  to  be  conferred  affects  only  a  small 
portion  of  the  community,  and  is  obviously  assignable  to 
a  particular  area.  The  Ughting  of  a  town,  the  erection 
of  a  bridge  over  a  country  road,  the  establishment  of  a 
street-car  system,  are  matters  of  this  sort.  Here  it  seems 
reasonable  that  the  advantage,  the  cost,  and  the  control 
of  the  enterprise  should  be  looked  upon  as  solely  the 
concern  of  those  who  are  affected  by  it. 

Such,  then,  is  the  general  distinction  between  the  du- 
ties of  central  and  local  governments.  The  public  serv- 
ices of  the  latter  will  be  found  on  examination  to  refer 


LOCAL  GOVERNMENT  291 

mainly  to  the  maintenance  of  schools,  hospitals,  asylums, 
bridges,  roads,  parks,  etc.,  and  the  management  of  local 
public  utilities,  such  as  lighting  plants,  transportation 
systems.  The  activities  of  local  government  are  thus 
concerned  mainly  with  real  property  in  various  forms; 
it  represents  the  collective  activity  of  the  citizens  di- 
rected towards  the  creation  and  control  of  such  tangible 
utilities  (roads,  bridges,  water  supply)  as  are  of  general 
benefit  in  their  particular  area,  and  indivisible  among 
the  separate  citizens.  The  services  thus  performed  may 
be  better  understood  by  contrasting  them  with  such 
regulative  legislative  activities  as  the  making  of  the 
criminal  law,  which  belongs  to  the  central  government. 
In  spite,  however,  of  the  obvious  nature  of  the  general 
distinction,  the  functions  of  local  and  central  govern- 
ment shade  and  blend  into  one  another.  In  some  cases 
what  is  evidently  a  local  matter  as  to  expense  and  im- 
mediate benefit  is  yet  in  other  aspects  a  matter  of  gen- 
eral concern.  This  is  seen  in  the  case  of  schools.  It  is 
of  evident  universal  concern  that  all  the  citizens  should 
be  educated,  and  it  is  therefore  within  the  proper  prov- 
ince of  the  central  government  to  make  education  com- 
pulsory, and  to  prescribe  the  general  plan  upon  which 
it  shall  be  based.  It  may  also  properly  defray  a  part  of 
the  cost,  leaving  to  the  local  government  the  immediate 
control  and  the  miain  part  of  the  cost,  at  least  of  pri- 
mary schools. 

2.  Areas  of  local  government;  the  United  States, 
France,  England.  From  this  general  consideration  of 
the  nature  of  local  government,  we  may  pass  to  some 
of  the  special  problems  which  arise  in  its  construction 
and  conduct.  These  we  may  group  under  three  heads: 
(1)  the  question  of  local  areas,  and  here  we  shall  have 
occasion  to  contrast  the  orderly  "multiple  system"  in 


292    THE  STRUCTURE  OF  THE  GOVERNMENT 

use  in  the  United  States  with  the  confusion  of  the  Eng- 
lish areas;  (2)  the  composition  of  local  governing  bodies, 
and  their  relation  to  the  central  executive,  in  connection 
with  which  the  centralized  system  of  France  may  be 
compared  with  the  decentralization  in  England  and  in 
America;  (3)  the  question  of  local  taxation,  involving 
an  examination  of  the  American  property  tax,  and  the 
systems  in  use  in  other  places. 

The  institution  of  local  government  everywhere  ne- 
cessitates the  division  of  the  total  territory,  not  only 
into  one  set  of  subordinate  areas,  but  into  several.  In 
the  United  States  we  have  townships  and  counties; 
in  England  parishes,  districts,  and  counties  (with  other 
divisions);  in  France,  communes,  cantons,  arrondisse- 
ments,  and  d^partements.  In  the  United  States  and 
in  England  we  have  in  addition  to  these  the  municipal 
areas  occupied  by  town  and  city  governments.  The 
reason  for  having  more  than  one  set  of  divisions  will  be 
plain.  Different  public  utilities  will  naturally  spread 
their  effect  over  areas  of  different  size.  Thus  it  will  re- 
quire, let  us  say,  only  twenty  families  to  support  a 
country  school;  but  the  same  number  of  families  could 
not  with  advantage  erect  and  maintain  a  lunatic  asylum 
for  their  use.  Nor  presumably  could  a  hospital  or  a 
poorhouse  be  supported  out  of  so  small  an  area.  It  be- 
comes plain,  then,  that  local  government  demands  the 
making  of  several  areas  adapted  to  the  respective 
"rarity"  or  "denseness"  of  the  fimction  to  be  per- 
formed. But  for  convenience'  sake  it  will  be  well  to 
make  these  areas  as  few  as  may  be,  and  to  group  to- 
gether those  which  roughly  correspond. 

As  the  basis  of  the  areas  of  local  government,  there 
will  generally  be  found  in  old  countries  such  as  England, 
France,  or  Prussia,  a  primitive  unit  of  settlement  whose 


LOCAL  GOVERNMENT  293 

history  is  long  antecedent  to  that  of  the  central  govern- 
ment itself.  Such  is  the  English  parish,  whose  ecclesi- 
astical name  has  superseded  the  original  Saxon  "town- 
ship," the  French  commune,  and  the  Prussian  Gemeinde. 
In  its  origin  this  represents  the  httle  community  of 
neighbors  Uving  together  in  a  hamlet,  or  in  adjacent 
rural  settlements,  and  conducting  their  joint  concerns 
by  some  form  of  common  management.  Where  such 
exists  it  is  plainly  desirable  to  adopt  it  as  the  primary 
area  of  the  local  government  of  the  modem  state. 
There  is,  however,  this  disadvantage,  that  in  the  course 
of  their  long  history  the  original  parishes,  etc.,  will  have 
grown  vastly  different  in  size  and  population.  In  Eng- 
land, for  example,  out  of  a  total  of  about  15,000  parishes, 
the  smallest  contains  less  than  fifty  acres,  the  largest 
over  10,000;  eleven  parishes  (in  1891)  had  no  inhab- 
itants, and  the  most  populous  (Islington)  contained 
319,000  inhabitants.  Similarly  in  France  some  com- 
munes are  rural  areas  or  mere  hamlets,  while  others  are 
great  cities.  In  spite  of  the  distortion  of  area  thus  oc- 
casioned, it  is  advisable  to  retain  such  historic  areas 
in  the  frame  of  local  government.  For  they  represent 
an  essentially  organic  unit,  and  one  which  offers  al- 
ready a  common  economic  and  social  Ufe  as  a  basis  for 
political  construction.  Above  such  areas  as  these  will 
come  larger  units  (the  counties,  districts,  etc.)  repre- 
senting the  performance  of  public  duties  such  as  road- 
making,  erection  of  poorhouses,  hospitals,  jails,  etc., 
which  demand  a  wider  support  than  that  given  by  the 
smallest  local  community.  The  number  of  gradations 
in  the  ascending  scale  of  local  areas  varies  from  coun- 
try to  country,  and  will  be  best  understood  by  a  brief 
comparative  review  of  the  division  adopted  in  some 
leading  states. 


294    THE  STRUCTURE  OF  THE  GOVERNMENT 

The  United  States  is  singularly  fortunate  in  the  con- 
figuration of  its  local  areas.  They  are  in  part  historic, 
and  in  part  deliberately  constructed  prior  to,  or  at  the 
same  time  as,  the  settlement  of  the  land.  The  towns 
(townships)  of  Massachusetts,  for  instance,  and  the 
counties  of  Virginia  may  be  called  historic  or  organic 
areas.  They  represent  the  original  grouping  of  settlers 
in  their  first  occupancy  of  the  colony.  But  one  has  only 
to  glance  at  the  map  of  such  a  State  as  North  Dakota  or 
Kansas  to  see  that  here  the  form  of  the  local  area  had 
been  a  matter  of  deUberate  construction.  Tlje  town- 
ships, the  sections  into  which  they  are  divided,  and  the 
counties  of  which  they  form  a  part,  are  rectangular 
figures  constructed  on  a  common  plan.  But  in  the 
greater  number  of  the  Commonwealths  in  the  United 
States,  whether  in  regular  hnes  or  not,  we  find  each 
Commonwealth  divided  into  townships,  which  grouped 
together  make  up  counties.  In  some  States,  as  in  New 
England,  the  townships  have  come  first,  and  the  county 
is  made  up  by  a  subsequent  addition  of  townships;  in 
the  South  the  reverse  has  been  the  case,  and  the  original 
area  was  the  county,  subdivided  later  to  make  town- 
ships. In  the  newer  States,  townships  and  counties  have 
been  made  at  the  same  time.  But  the  excellence  of  the 
arrangement  of  the  areas  of  local  government  in  the 
United  States  lies  in  the  fact  that  the  larger  areas  are 
multiples  of  the  smaller  ones;  township  hnes  do  not 
cross  county  hnes.  The  result  is  that  all  the  inhabitants 
of  any  township  belong  to  the  same  coimty.  This  will 
be  seen  to  have  a  most  important  bearing  on  the  adjust- 
ment of  local  financial  burdens. 

The  division  of  areas  in  France  is  based,  as  in  the 
United  States,  on  the  multiple  plan.  To  this  general 
scheme,  however,  the  historic  commune  is  a  disturbing 


LOCAL  GOVERNMENT  295 

exception.  There  may  be  several  communes  in  an  ar- 
rondissement  (as  is  generally  the  case,  since  the  total 
communes  number  about  36,000),  or,  as  in  the  case  of 
Paris,  several  arrondissements  in  a  commune.  But  above 
the  commune  the  areas  fit  into  one  another;  the  canton 
(which  is  only  an  electoral  and  judicial  district,  and  not 
a  seat  of  government)  is  in  every  case  a  part  of  an  ar- 
rondissement;  the  latter  itself  is  a  subdivision  of  the 
largest  area,  the  d^partement.  With  the  exception  again 
of  the  commune,  all  these  areas  represent  deliberate 
construction,  involving  to  some  extent  the  sacrifice  of 
the  historic  division  of  the  country.  They  were  made 
in  1790  by  the  Constituent  Assembly,  the  first  national 
parUament  of  the  French  Revolutionary  era.  This  is 
reflected  in  the  fact  that  the  departments  are  approx- 
imately of  equal  size.  Some  of  the  more  extreme  con- 
structionists of  the  epoch  wished  to  subdivide  France 
into  a  number  of  rectangles,  exactly  similar  and  exactly 
equal,  disregarding  at  the  same  time  the  geographical 
configuration  of  the  country  and  the  historic  associations 
of  provinces,  towns,  and  districts.  This  was  not  done, 
however,  and  the  departments  as  constructed  conform 
pretty  much  to  the  physical  features  of  the  country, 
and  are  named  after  the  mountains,  rivers,  bays,  etc., 
which  they  contain  or  adjoin. 

In  England,  and  indeed  in  the  British  Isles  generally, 
the  utter  confusion  into  which  the  areas  of  local  govern- 
ment had  fallen  has  caused  one  of  the  administrative 
problems  of  the  nineteenth  century.  In  Saxon  times 
the  townships,  the  hundred,  and  the  shire  formed  a 
simple  multiple  system  with  local  self-governing  bodies. 
But  the  hundred  fell  into  decay,  the  township  (taking 
its  ecclesiastical  name  of  parish)  became  irregular,  and 
lost  most  of  its  civil  authority,  and  in  place  of  the  local 


296    THE  STRUCTURE  OF  THE  GOVERNMENT 

self-government  of  township  and  county  was  substi- 
tuted first  the  control  of  the  king's  sheriff,  and  finally 
the  almost  universal  administrative  jurisdiction  of  the 
local  justices  of  the  peace.  For  special  purposes  —  the 
care  of  the  poor,  highways,  burial,  sanitation,  schools 
—  special  areas  were  added,  having  httle  to  do  with 
parish  or  county  lines,  and  under  a  separate  governing 
body.  The  result  previous  to  the  reforms  to  be  de- 
scribed later  was  complete  confusion.  The  situation  is 
thus  described  by  Dr.  WilHam  Odgers,  recorder  of 
Winchester:  ^  "In  1883  England  and  Wales  were  di- 
vided for  local-government  purposes  into  the  following 
areas:  There  were  52  counties,  239  municipal  bor- 
oughs, 70  improvement-act  districts,  1006  urban  san- 
itary districts,  41  post  sanitary  authorities  and  577 
rural  sanitary  districts,  2051  school  board  districts, 
649  unions,  194  lighting  and  watching  districts,  14,946 
poor-law  parishes,  5064  highway  parishes,  not  included 
in  urban  or  highway  districts,  and  about  13,000  ecclesi- 
astical parishes.  The  total  number  of  local  authorities 
who  then  taxed  the  EngUsh  rate-payer  was  27,069,  and 
they  taxed  him  by  means  of  18  different  rates."  With 
one  trifling  exception,  "  all  the  various  areas  intersected 
and  overlapped  each  other."  The  means  that  have  re- 
cently been  taken  to  rectify  the  entanglement  thus  oc- 
casioned will  form  the  subject  of  a  later  paragraph. 

3.  Composition  and  powers  of  local  governing  bod- 
ies; the  United  States.  Let  us  now  consider  the  com- 
position and  powers  of  local  governing  bodies,  and  their 
relation  to  the  central  authority.  Here  we  may  distin- 
guish two  broadly  contrasted  methods  of  construction. 
The  one  is  the  system  of  decentraUzation,  or  local  au- 

»  Local  Government  (1901).  An  excellent  book,  which,  however,  refers 
only  to  local  government  ia  England. 


LOCAL  GOVERNMENT  297 

tonomy.  But  this  control  of  local  affairs  is  vested  in  a 
set  of  officials,  elected  by  the  people  of  the  locality  it- 
self. Subject  to  certain  general  regulations  which  pro- 
ceed either  from  the  central  authority  or  from  the  con- 
stituent power  (expressed  in  a  written  constitution) 
which  is  behind  both  the  central  and  the  local  organi- 
zation, the  fullest  latitude  is  given  to  the  citizens  of  the 
locahty  in  the  management  of  their  public  affairs.  The 
other  system  is  that  of  centralization.  Here  the  man- 
agement of  local  affairs  is  largely  controlled  by  a  set 
of  officials  appointed  by  the  central  government.  The 
former  system  prevails  in  complete  form  in  the  United 
States,  and  to  a  slightly  less  degree  in  England.  The 
latter,  or  centralized  system,  is  in  use  in  France.  In  the 
Kingdom  of  Prussia^  something  of  a  combination  of  the 
two  had  been  put  into  practice.  A  brief  review  of  the 
governing  bodies  thus  established  in  the  different  coun- 
tries will  help  us  to  a  judgment  as  to  the  pecuUar  politi- 
cal purposes  and  the  relative  merits  of  the  two  systems. 
In  the  United  States,  both  in  the  North  and  South 
and  in  the  new  States,  local  autonomy  prevails.  The 
form  which  it  assumes  differs,  however,  to  some  extent. 
In  the  New  England  States  the  primary  area  of  local 
government  is  the  historic  "town"  or  township,  origi- 
nally formed  by  the  joint  settlement  of  a  group  of 
emigrants.  Its  government  has  already  been  referred 
to  in  connection  with  direct  legislation  in  a  preceding 
chapter.  The  original  organ  of  its  government  is  the 
mass  meeting  of  the  quahfied  voters,  called  the  "  town 
meeting."  In  places  that  have  grown  too  populous 
for  such  a  form  of  government,  the  town  meeting  is 

^  The  discussion  of  local  govermneDt  in  Prussia  refers  to  the  King- 
dom of  Prussia  as  it  was  before  the  Great  War.  Aa  a  result  of  the  war 
Prussia  is  much  diminished  in  area,  and  has  undergone  many  internal 
changes  which  may  or  may  not  prove  permanent. 


298    THE  STRUCTURE  OF  THE  GOVERNMENT 

replaced  by  elected  municipal  government  —  in  Massa- 
chusetts, for  example,  towns  of  over  twelve  thousand 
inhabitants  are  erected  into  municipaUties.  But  in  less 
populous  areas,  the  town  meeting  still  exists.  It  is  held 
once  a  year  (with  extra  sessions,  if  necessary),  usually 
in  the  spring,  though  in  Connecticut  the  regular  meet- 
ing is  in  the  autumn.  Its  business  is  to  elect  the  ofl&cers 
of  the  townships  for  the  ensuing  year,  to  vote  on  the 
prospective  expenditure  of  money  and  the  basis  of  its 
assessment,  and  other  local  matters  that  may  be  brought 
before  it.  When  the  town  meeting  is  not  in  session,  its 
authority  passes  to  the  ofl5cers  whom  it  has  elected. 
These  are  the  group  of  selectmen,  varying  from  three 
to  nine  in  number;  the  town  clerk,  who  keeps  its  records; 
the  treasurer  and  the  assessors,  who  are  entrusted  with 
the  important  duty  of  setting  a  value  on  the  property 
of  the  township  for  the  collection  of  taxes;  in  addition 
to  these  are  a  collector  of  taxes,  school-conmiittee  men, 
and  minor  ofl&cers.  This  system,  it  will  be  seen,  erects 
the  township  into  a  complete  local  democracy,  a  re- 
public within  a  republic,  as  it  were.  The  authority  of 
the  superior  ofl&cials  of  the  State  over  the  affairs  of  the 
township  is  reduced  to  a  minimum.  It  must  be  recol- 
lected, of  course,  that  under  the  American  system,  the 
state  constitution  itself  acts  as  a  check  upon  the  power 
of  the  local  authorities,  prescribing  the  Umits  of  their 
authority,  often  laying  down  the  maximiun  of  their 
taxing  power,  and  the  form  of  taxation  which  they  are 
authorized  to  use.  If  they  exceed  their  legitimate  pow- 
ers, the  usual  method  of  judicial  redress  through  the 
courts  can  be  brought  into  play.  The  area  superior  to 
this,  the  county,  is  in  New  England  merely  a  grouping 
of  townships,  whose  governing  authority  is  an  elected 
body,  the  functions  of  which  are  very  restricted.   In 


LOCAL  GOVERNMENT  299 

Massachusetts  there  are  three  commissioners,  one 
elected  each  year,  and  serving  for  three  years.  Their 
duties  consist  in  apportioning  taxes  for  county  purposes 
among  the  towns  according  to  the  system  discussed 
later,  in  erecting  and  looking  after  county  buildings, 
and  maintaining  county  roads,  in  issuing  licenses,  etc. 

In  the  South  the  position  of  county  and  town  is 
reversed.  The  county  is  the  historic  area,  originally 
used  for  judicial  purposes,  and  extended  in  use,  later, 
to  other  administrative  functions.  The  township  repre- 
sents a  subsequent  subdivision  of  the  county,  especially 
for  the  purpose  of  maintaining  primary  schools.  But 
in  some  States  the  county  exists  alone,  without  the 
township.  The  organization  of  the  Southern  county  is 
based  on  local  autonomy.  At  its  head  is  the  elected 
board  of  county  conunissioners,  with  whom  are  asso- 
ciated a  treasiu-er,  superintendents  of  the  poor  and  of 
education,  sheriff,  and  other  oflScers.  Where  no  town- 
ship exists,  the  commissioners  of  the  county  conduct 
the  whole  local  administration  (roads,  poorhouses,  jails, 
etc.);  where  the  township  has  been  introduced,  the 
things  handed  over  to  its  elected  ofl&cers  vary  very 
much. 

In  the  Central  Atlantic  States,  and  to  the  west  of 
the  Alleghanies,  we  no  longer  find  either  township  or 
county  assuming  the  same  preponderant  position  as  in 
New  England  or  the  South.  Both  township  and  county 
exist,  governed  by  officers  elected  by  the  people,  and 
dividing  the  local  government  between  them  according 
to  the  nature  of  the  service  to  be  performed.  Some- 
times the  one  and  sometimes  the  other  has  been  his- 
torically antecedent.  In  New  York,  Pennsylvania, 
Delaware,  and  New  Jersey,  the  township  was  the  origi- 
nal area,  an  organic  unit  based  on  settlement.   For 


300    THE  STRUCTURE  OF  THE  GOVERNMENT 

this  reason  we  still  find  the  annual  town  meeting  in 
rural  New  York,  presided  over  by  the  justice  of  the 
peace,  electing  officers,  passing  by-laws,  and  voting 
taxes.  But  in  the  Central  Atlantic  States  the  existence 
of  a  larger  and  artificial  area  in  the  shape  of  the  "rid- 
ing," acted  as  the  starting-point  for  the  introduction  of 
county  government.  In  the  Northwestern  States  the 
county  has  generally  preceded  the  township.  In  IlUnois, 
most  of  whose  Southern  settlers  in  early  times  came 
from  Virginia,  the  county  was  first  introduced.  But 
here,  as  in  a  great  many  other  States,  the  needs  of 
school  regulation  served  to  introduce  township  gov- 
ernment. By  the  system  of  surveys  made  by  authority 
of  Congress  (beginning  with  the  Land  Ordinance  of 
1785),  the  land  in  all  new  territory  has  been  cut  up  into 
squares  six  miles  each  way,  and  thus  containing  thirty- 
six  square  miles.  One  square  mile  in  each  has  been 
devoted  by  the  national  government  to  the  maintenance 
of  public  schools.  It  has  thus  happened  that  in  many 
cases  the  word  "township"  was  first  used  merely  as 
the  designation  of  the  tract  of  land  six  miles  square. 
Later  on,  as  settlement  grew,  the  election  of  officers 
for  the  public  business  of  the  township  naturally  fol- 
lowed. But  in  other  States  the  township,  though  the 
county  has  existed  side  by  side  with  it,  has  been  from 
the  first  the  chief  area  of  local  government.  This  has 
happened  in  Michigan,  whose  first  settlers  came  from 
New  England,  and  transplanted  their  local  institutions. 
The  town  meeting  is  in  use  in  Michigan  almost  in  the 
same  way  as  in  Massachusetts.  Within  the  township 
itself  there  is  often  found  as  a  subordinate  area  the 
school  district,  with  separate  elected  officers  (trustees, 
directors,  etc.),  who  appoint  teachers,  supervise  the  ex- 
penditure of  money  on  buildings,  etc.  But  this  is  not 


LOCAL  GOVERNMENT  301 

universal,  as  in  many  places  —  in  Massachusetts  and 
Pennsylvania,  for  example — the  school  district  is  amal- 
gamated with  the  township. 

The  above  are  the  only  organs  of  government  that 
operate  in  the  rural  parts  of  the  country.  But  there 
are,  in  addition  to  these,  the  urban  organizations  (cities, 
towns,  villages,  and  —  in  Pennsylvania  —  boroughs)  ; 
the  exact  form  of  government  varies  from  State  to  State. 
Cities  and  towns,  etc.,  are  sometimes  organized  by 
virtue  of  a  general  statute  or  constitutional  provision, 
which  makes  it  possible  for  any  locality  having  a 
certain  population  to  adopt  a  municipal  government. 
Sometimes  their  form  of  administration  is  given  to 
them  by  a  special  act  of  the  legislature.^  It  may  ap- 
proximately be  said  that  the  latter  is  the  case  in  regard 
to  the  larger  cities,  the  smaller  ones  coming  under  a 
general  law.  In  all  cases  the  government  is  democratic 
and  autonomous.  The  control  of  the  city  is  in  the  hands 
of  officers  elected  by  the  qualified  voters  among  its  in- 
habitants, or,  if  not  directly  elected,  at  any  rate  ap- 
pointed by  some  one  else  who  is  himseK  elected.  In 
some  States  (Virginia)  the  city  government  excludes 
the  county;  in  others  the  county  remains,  forming  a 
part  of  the  city,  or  including  the  city  as  part  of  itself. 
The  government  of  an  American  city  resembles  in  its 
structure  that  of  one  of  the  States.  At  its  head  is  an 
elected  mayor,  as  chief  executive  officer,  with  a  large 
number  of  subordinates,  partly  elected,  partly  ap- 
pointed. iThere  is,  in  addition,  a  legislative  or  quasi- 
legislative  body  in  the  form  of  the  city  council,  gener- 

*  Acts  which  are  in  reality  special  may  be  made  to  appear  general 
in  form  by  relation  to  an  apparent  "class"  of  cities  of  which  only  one 
exists.  Special  legislation  ia  as  a  rule  only  permitted  under  constitu- 
tional safeguards.  Cf.  Constitution  of  the  State  of  New  York  (as 
amended  to  J&n.  1,  1920),  art.  12,  sec.  2. 


302    THE  STRUCTURE  OF  THE  GOVERNMENT 

ally  made  up  of  two  different  sets  of  members  —  the 
aldermen  and  the  comicilors  —  who  are  elected  for 
different  terms  and  different  districts.  The  earlier  ten- 
dency, which  originated  in  the  prevalent  belief  in  the 
onmiscience  of  any  legislative  body  and  a  distrust  of 
executive  officers,  was  to  place  the  bulk  of  the  authority 
in  the  hands  of  the  council,  and  to  give  the  mayor  as 
little  discretionary  power  as  possible. 

The  change  of  pubUc  opinion  in  this  respect  (already 
referred  to  in  a  preceding  chapter)  has  caused  a  con- 
trary policy.  The  concentration  of  authority  in  the 
hands  of  one  man,  rather  than  of  a  whole  body,  carries 
with  it  a  definite  location  of  responsibihty.  One  man, 
conspicuous  by  the  isolation  of  his  office,  aware  that  he 
alone  is  answerable,  and  that  the  blame  of  negligence 
cannot  be  shifted,  and  having  at  the  same  time  the 
power  to  act  unhampered  by  idle  discussion,  is  more 
likely  to  prove  efficient  than  a  committee  whose  mem- 
bers can  shift  to  one  another's  shoulders  the  blame  of 
their  joint  misdeeds. 

In  Boston,  for  example  (under  the  charter  of  1910), 
the  administration  is  vested  in  a  mayor  elected  for  four 
years,  but  subject  to  recall  after  two  years,  and  a  city 
council  of  nine  members,  elected  at  large  for  three-year 
terms.  The  mayor  has  a  veto  over  the  acts  of  the  coun- 
cil, and  appoints  nearly  all  the  heads  of  departments, 
boards,  and  commissions.  By  the  charter  of  Greater 
New  York,  amended  in  1901,  the  city  government  cen- 
ters in  a  mayor,  elected  for  four  years,  and  a  board  of 
seventy-three  aldermen,  elected  for  two  years.  The 
ma^or  has  very  great  power.  He  can  absolutely  veto 
any  grant  of  a  city  franchise,  and  has  a  partial  veto  over 
ordinary  legislative  acts  of  the  board  of  aldermen.  He 
appoints  the  heads  of  fourteen  out  of  the  fifteen  admin- 


LOCAL  GOVERNMENT  303 

istrative  departments  (fire,  education,  water  supply, 
etc.),  and  has  power  to  remove  most  of  them.  He  ap- 
points, also,  the  civil  service  commissioners.  Each  of  the 
separate  boroughs  of  Greater  New  York  has  its  presi- 
dent, who  controls  the  street  paving,  the  sewers,  etc.^ 

A  significant  development  of  city  administration  in 
the  opening  decades  of  the  twentieth  century  has  been 
the  progressive  introduction  of  what  is  commonly  called 
the  "commission  plan"  of  government.  This  was  the 
outcome  of  the  peculiar  weaknesses  developed  under  the 
older  system  of  elective  councils  and  accentuated  more 
and  more  with  the  growth  of  the  vast  expenditure  and 
the  compUcated  technical  business  of  the  modern  city. 
It  was  found  that  the  individual  members  of  a  large 
council,  elected  for  a  particular  ward  or  district  for  a 
short  term  and  for  a  small  emolument,  were  lacking  in 
a  proper  sense  of  responsibility  and  were  tempted  to  re- 
gard their  office  as  a  mere  source  of  influence  and  pres- 
tige and  even  as  an  opportunity  for  illicit  gain.  The 
smallness>of  the  remuneration  that  they  received  pre- 
vented them  from  devoting  their  whole  time  to  their 
civic  fimctions,  or  applying  themselves  to  the  formal 
study  of  civic  institutions.  Under  the  commission  plan 
councils  of  this  sort  are  superseded,  in  whole  or  in  part, 
by  bodies  called  commissions,  boards  of  control,  etc. 
The  officials  of  these  are  relatively  few  in  number,  are 
appointed  for  longer  terms  and  i>aid  a  salary  such  as  to 
enable  them  to  devote  themselves  altogether,  or  in  great 
measure,  to  their  city  work.  As  in  the  case  of  the  mayor 
great  responsibility  and  great  power  are  used  as  a  stimu- 
lus towards  energetic  action  and  meritorious  service. 
This  system,  combined  with  the  general  vote  of  the 

*  The  student  may  consult  here  W.  B.  Munro,  The  Oovemment  of 
American  Cities  (1913). 


304    THE  STRUCTURE  OF  THE  GOVERNMENT 

people  as  an  implement  of  ratification  and  recall,  has 
remodeled  the  democratic  government  of  cities  on  lines 
quite  unknown  in  the  opening  phases  of  modem  democ- 
racy. It  too  will  develop  its  peculiar  faults,  and  no  mere 
"scheme"  or  "method"  is  proof  against  corruption 
which  can  be  fought  only  by  civic  virtue  and  the  power 
of  public  opinion.  But  at  present  commission  govern- 
ment is  a  new  broom  which  sweeps  clean.* 

The  most  important  of  all  questions  in  connection 
with  city  government  is  not  its  construction,  but  the 
scope  of  its  operation,  the  kind  of  public  services  which 
it  is  to  imdertake,  whether  or  not  it  shall  operate  its  own 
lighting  plant,  car  service,  etc.  But  the  consideration  of 
this  topic  will  fall  under  a  later  chapter. 

4.  England.  The  distinctive  feature  of  American 
local  government  has  been  seen  to  be  the  great  extent 
to  which  autonomy,  or  self-government,  prevails.  The 
same  feature  is  to  be  observed  in  the  local  government  of 
England,  as  recently  reconstructed;  but  previous  to  the 
reconstruction  acts  of  the  last  half  of  the  nineteenth 
century,  this  was  not  the  case.  The  greater  part  of  local 
jurisdiction  had  been  placed,  not  all  at  once,  but  bit  by 
bit,  in  the  hands  of  the  justices  of  the  peace.  The  func- 
tions of  these  officials  had  become  so  numerous  as  to 
defy  anything  but  a  purely  alphabetical  enumeration; 
they  included  such  important  matters  as  the  levy  of  the 
county  rate,  the  issuing  of  liquor  licenses,  the  conduct  of 
asylums,  and  the  supervision  of  prisons.  In  their  judi- 
cial capacity  these  officials  tried  criminal  cases.  The 
justice  of  the  peace,  appointed  by  the  crown,  on  the  ad- 
vice of  the  lord  lieutenant  of  the  county,  did  not  repre- 
eent  the  principle  of  local  seK-govemment.  He  was  the 

*  The  student  may  consxilt  E.  S.  Bradford,  Commission  Government 
in  the  American  Cities  (1911). 


LOCAL  GOVERNMENT  305 

nominee  of  the  central  government,  and  in  many  cases 
was  acting  as  the  agent  of  one  of  its  departments,  of  the 
local  government  board,  the  board  of  trade,  etc.  In  ad- 
dition to  the  justices,  various  special  bodies  had  been 
created  in  the  com^e  of  the  nineteenth  century,  occupy- 
ing some  of  the  conflicting  areas  already  mentioned. 
The  board  of  guardians  (by  the  Poor  Law  Amendment 
Act  of  1834)  had  control  of  the  care  of  the  poor  in  a 
"union"  of  parishes,  the  board  being  composed  of  the 
local  justices  together  with  elected  members.  The  Burial 
Acts  (1852  and  others)  constituted  burial  boards,  elec- 
tive bodies  operative  over  a  parish  or  larger  districts. 
Finally  there  were  added,  in  1870,  school  districts,  with 
elective  school  boards.  The  parish  itself  remained  as 
an  ecclesiastical  area,  but  exercised  also  through  its  offi- 
cials, or  through  its  general  vestry  meeting,  minor  civil 
functions.  These  and  other  bodies  made  up  a  medley  of 
authorities,  whose  areas  of  jurisdiction  were  inextricably 
confused,  and  whose  composition  gave  but  Uttle  scope 
to  local  self-governance.  The  government  of  cities  and 
towns  which  had  grown  up  under  special  charters,  and 
was  often  in  the  hands  of  a  small  portion  of  the  inhab- 
itants (sometimes  of  a  close  corporation),  was  also  hope- 
lessly confused  and  hopelessly  at  variance  with  any 
principle  of  popular  government. 

Though  much  of  the  older  confusion,  at  least  as 
viewed  by  an  American,  remains,  a  great  deal  has  been 
done  to  place  local  government  in  England  upon  a  more 
reputable  footing.  Two  main  objects  have  been  kept  in 
view  —  the  rectification  of  areas  and  the  introduction 
of  local  self-government.  With  this  object,  a  series  of 
reforming  acts  has  been  passed :  the  Municipal  Corpora- 
tion Acts  of  1835  and  1882,  the  Local  Government  Act  of 
1888  (referring  mainly  to  county  government),  the  Local 


306    THE  STRUCTURE  OF  THE  GOVERNIMENT 

Government  Act  of  1894  (for  parishes  and  districts),  the 
London  Government  Act  of  1899,  and  the  Education  Act 
of  1902.  The  general  effect  of  the  reform  is  as  follows. 
The  justice  of  the  peace  is  relegated  to  his  judicial 
sphere,  retaining  but  few  of  his  administrative  func- 
tions. The  old  Saxon  system  of  three  ascending  areas 
with  elective  self-government  (township,  hundred,  and 
county)  reappears  in  the  present  parish,  district,  and 
coxmty.  To  the  county  is  given  an  elected  council,  with 
wide  range  of  local  power.  The  elected  district  council 
has  authority  over  sanitation,  allotments,  certain  li- 
censes, and  other  things.  The  parishes  inside  the  area  of 
towns  are  not  affected  by  the  reform,  but  the  rural  par- 
ishes have  now  elective  self-government.  If  the  parish 
has  less  than  three  hundred  inhabitants,  it  exercises  its 
government  by  means  of  a  general  "parish  meeting,"  on 
the  lines  of  the  American  town  meeting,  but  with  much 
less  authority,  for  the  sphere  of  parish  operations  is 
small.  In  the  larger  parishes  councils  are  elected.  The 
school  district  imder  the  Act  of  1902  disappeared,  and 
the  control  of  schools  was  vested  in  a  committee  of  the 
coxmty  council,  having  as  a  subordinate  authority  a 
body  of  managers  for  each  school.^  The  reforms  also 
introduce  elective  self-government  into  the  cities  and 
towns,  in  the  shape  of  mayor,  aldermen,  and  coimcilors; 
but  the  relation  of  the  cities  to  the  counties  in  which 
they  lie  is  not  always  the  same.  Some  are  administra- 
tive counties  (Southampton,  etc.),  or  are  "county  bor- 
oughs" (Liverpool,  Manchester,  and  about  sixty  others), 

•  The  violent  opposition  to  the  act  arose  not  from  this  aspect  of  its 
provisions,  but  from  the  fact  that,  in  unifying  the  church  schools  with 
the  board  schools,  it  contrived  to  allow  the  former  to  get  a  share  of 
the  proceeds  of  local  taxation.  It  amounted,  therefore,  in  the  eyes  of 
its  adversaries,  to  a  device  for  making  rate-payers  of  all  denominations 
contribute  to  the  aupport  of  the  schools  of  the  Church  of  England. 


LOCAL  GOVERNMENT  307 

and  stand  quite  apart  from  the  county  government. 
Below  these  are  graded  classes,  which  fall  to  an  increas- 
ing extent  within  the  regulation  of  the  coimty  authori- 
ties. London  stands  by  itself.  It  contains  within  it  the 
small  central  portion  (about  one  mile  square)  known  as 
the  City  of  London,  and  governed  as  before  by  the  lord 
mayor  and  the  "courts"  of  which  he  is  president,  the 
court  of  common  council  (composed  of  aldermen  and 
councilors)  being  the  chief.  Outside  of  this  Ues  the  vast 
"County  of  London"  (with  a  population  of  4,522,961  in 
the  census  of  1911),^  under  the  control  of  an  elected 
county  council.  This  whole  area  (except  the  City)  is 
subdivided  into  twenty-eight  "metropolitan  boroughs," 
each  with  an  elected  council.  The  result  of  these  various 
reforms  is  that  throughout  the  whole  system  the  central 
government  has  withdrawn  from  its  former  control,  in 
favor  of  the  autonomy  of  elected  local  authorities.  Such 
management  as  it  still  retains  is  in  the  hands  of  the  lo- 
cal government  board,  a  body  consisting  of  a  president 
(who  is  a  member  of  the  cabinet,  and  who  is  the  acting 
power)  and  other  cabinet  officers,  nominally  associated 
with  him.  But  the  duties  of  the  board  consist  merely  in 
supervision;  it  does  not  appoint  local  officials,  and  its 
chief  function  of  importance  is  to  sanction  financial 
measures  of  the  subordinate  authorities. 

5.  France.  In  France  local  government  assumes  an 
entirely  different  character  from  that  found  in  America 
and  England.  The  distinguishing  feature  is  its  highly 
centrahzed  form,  and  the  great  degree  of  dependence  in 
which  all  local  authorities  are  placed  in  regard  to  the 
central  national  government.  Take  for  instance  the  ad- 
ministration of  a  French  department,  the  largest  of  the 
local  areas.    At  its  head  is  the  prefect,  an  official  ap- 

*  Estimated  in  1918  at  4.521,301. 


308    THE  STRUCTURE  OF  THE  GOVERNMENT 

pointed  by  the  President  of  the  Republic,  on  the  recom- 
mendation of  the  minister  of  the  interior.  He  has  asso- 
ciated with  him,  it  is  true,  an  elected  body  known  as  the 
general  council  of  the  department.  But  the  power  of  the 
latter  is  reduced  to  the  smallest  compass.  It  is  allowed 
by  law  only  two  regular  annual  sessions,  the  one  of  fif- 
teen days,  the  other  of  a  month.  It  has  no  true  taxing 
power,  for  the  amount  of  money  which  it  may  use  and 
the  manner  of  raising  it  are  both  regulated  by  the  French 
parliament.  In  the  spending  of  the  money  thus  accruing 
to  it,  it  does  not  act  on  its  own  initiative,  for  it  is  the 
prefect  who  draws  up  the  budget  which  is  annually  sub- 
mitted to  it.  Even  then  the  expenditure  as  finally  voted 
requires  the  assent  of  the  President  of  the  RepubUc.  The 
latter  has  also  the  power  to  dissolve  the  coimcil,  a  power 
which  may  be  exercised  even  by  the  prefect  if  the  coun- 
cil outsits  its  statutory  term.  If  it  exceeds  the  scope  of 
its  legal  competence,  its  acts  can  be  declared  void  by  the 
President.  Its  members  are  unpaid,  their  attendance 
is  compulsory,  they  are  forbidden  to  adopt  any  resolu- 
tions, etc.,  bearing  upon  general  politics,  nor  can  a 
council  enter  into  any  political  correspondence  or  rela- 
tions with  that  of  any  other  department.  In  contrast  to 
this  the  power  of  the  prefect  is  very  great.  At  times,  in- 
deed, he  merely  acts  as  the  agent  of  the  general  govern- 
ment, with  no  discretion  of  his  own,  as  when  enacting 
the  ordinances  of  the  President.  But  in  addition  to  this, 
and  to  the  duties  in  connection  with  the  council  already 
explained,  the  prefect  has  a  wide  sphere  of  authority. 
He  appoints  and  dismisses  the  teachers  in  the  govern- 
ment schools,  is  at  the  head  of  the  police,  is  recruiting 
oflBcer,  etc.  The  same  system  on  a  smaller  scale  is 
adopted  in  the  arrondissement,  the  first  subdivision  of 
the  department.  At  its  head  is  a  sub-prefect,  appointed 


LOCAL  GOVERNMENT  309 

by  the  President;  the  functions  of  its  council  amount  to 
little  more  than  the  division  of  apportioned  taxes  among 
the  communes.  The  primary  unit,  the  commune,  is  in  a 
slightly  less  dependent  position.  Being  organic  and  his» 
toric,  and  not  merely  "geometrical,"  as  are  the  superior 
units,  it  tends  to  develop  a  greater  vitality.  Its  mayor 
(since  1882)  is  an  elected  officer.  But  its  municipal  coun- 
cil, like  that  of  the  department,  has  restricted  powers 
and  very  limited  sessions.^  It  is  subject  to  dissolution 
by  the  President,  and  can  be  suspended  for  a  month  by 
the  prefect.  All  French  towns  and  cities  except  Paris 
and  Lyons,  which  have  a  special  form  of  government, 
are  organized  as  communes  on  the  same  plan. 

The  pecuUar  form  which  local  government  has  thus 
assumed  in  France  has  grown  out  of  the  troubled  history 
of  the  country  since  the  Revolution.  At  the  making  of 
the  first  constitution  of  that  era  (the  monarchical  con- 
stitution adopted  in  1791)  the  reformers  were  fully  in- 
spired with  the  idea  of  local  autonomy.  The  depart- 
ments were  erected  into  what  were  described  as  "httle 
republics,"  and  the  power  centered  in  their  "councils 
general"  was  very  considerable.  Such  an  arrangement 
made  at  such  a  time  served  only  to  weaken  the  authority 
of  the  central  executive  at  Paris  to  an  alarming  degree. 
Under  the  revolutionary  government  of  the  Terrorists, 
therefore,  in  1793-94,  local  power  was  put  into  the 
hands  of  "national  agents,"  appointed  from  Paris,  and 
of  special  "representatives  on  mission,"  who  exercised 
a  dictatorial  power.  The  intense  centralization  thus 
effected  rendered  it  possible  for  the  executive  govern- 
ment to  avail  themselves  of  the  whole  resources  of  the 

'  Full  details  in  reference  to  the  organization  of  local  government 
in  France  may  be  found  in  Ducrocq,  Coura  du  Droit  Adminiairatif, 
vol.  1 ;  and  in  Simonet,  TraiU  ElimerUaire  du  Droit  Public  et  Admin- 
iairatif. 


310    THE  STRUCTURE  OF  THE  GOVERNMENT 

nation  with  wonderful  efifect.  The  same  plan  was  de- 
liberately adopted  and  perfected  by  Bonaparte  under 
the  constitution  of  the  year  VIII  (law  of  Feb.  17, 1800), 
in  which  the  prefects  and  sub-prefects  appear,  and 
which  has  since  remained  as  the  basis  of  local  govern- 
ment in  France.  The  struggle  between  different  dynas- 
ties and  parties  for  the  control  of  the  national  govern- 
ment, and  the  successive  revolutions  (1830,  1848,  1851, 
1870)  in  which  the  struggle  has  culminated,  have  made 
each  party  willing  to  adopt  the  centralized  system  as  a 
means  of  consohdating  its  own  power.  This  has  con- 
tributed largely  to  give  to  Paris  a  political  preeminence 
not  enjoyed  by  any  other  capital.  For  the  purposes  of 
revolution,  Paris  during  the  nineteenth  century  meant 
France,  and  the  successful  seizure  of  the  central  control 
carried  with  it  the  mastery  of  the  entire  government. 
The  efficiency  of  this  concentration  of  power  in  time 
of  war  or  invasion  is  very  great;  it  insures  a  prompt 
cooperation  from  all  parts  of  the  country.  But  as 
against  this  must  be  set  the  enervating  influence  on 
local  affairs  of  government  from  above,  and  the  tempta- 
tion of  the  central  government  to  use  its  agents  for  po- 
litical purposes. 

6.  Prussia.  The  system  of  local  government  in  Prus- 
eia,  as  it  existed  before  the  changes  occasioned  by  the 
collapse  of  the  kingdoms  after  the  Great  War,  contained 
one  or  two  features  of  marked  theoretical  interest.  As  a 
compromise  between  state  control  and  local  self-govern- 
ment, there  was  in  use  in  the  Prussian  provinces  a  dou- 
ble set  of  officials,  a  president  and  council  appointed  by 
the  crown,  and  a  provincial  diet  elected  by  the  repre- 
sentative bodies  in  the  "circles"  and  choosing  its  own 
executive  head  (Landeshauptmann)  and  executive  com- 
mittee. The  spheres  of  state  authorities  and  provincial 


LOCAL  GOVERNMENT  311 

elective  authorities  were  kept  separate,  the  former  being 
mainly  concerned  with  supplying  information  to,  and 
acting  as  the  agent  of,  the  royal  government  at  Berlin. 
The  functionaries  of  the  Prussian  "district,"  the  sub- 
division of  the  province,  were  all  nominated  by  the  cen- 
tral government;  of  those  of  the  circle,  or  subdivision  of 
the  district,  the  executive  chief  was  appointed  by  the 
president  of  the  province,  while  the  diet  was  elective. 
In  rural  communes  there  were  elective  assemblies,  but 
there  remained  still  communes,  if  one  may  use  the  term 
to  translate  the  word  Rittergut,  that  were  under  the 
jurisdiction  of  a  manorial  lord.  The  towns  and  cities 
were  variously  organized  on  the  elective  plan.  But  it 
must  be  recalled  that  the  elective  system  in  Prussia  was 
arranged  on  the  division  of  the  voters  into  classes  ac- 
cording to  the  amount  of  taxes  that  they  paid,  thus 
greatly  favoring  the  rich.  The  central  government  re- 
tained a  supervising  power  over  financial  measures. 
The  Prussian  system  of  combining  local  authority  with 
central  control  would  prove  quite  impossible  in  Amer- 
ica, owing  to  the  conjflict  of  jurisdiction  it  would  occa- 
sion; in  Prussia  such  conflict  was  less  to  be  feared,  be- 
cause it  was  a  matter  controlled,  as  already  explained 
in  reference  to  France,  by  the  administrative  oflBcers 
themselves. 

7.  Local  taxation;  the  property  tax  of  the  United 
States.  We  come  now  finally  to  the  difficult  question  of 
local  taxation  and  finance.  In  the  United  States  local 
taxation  has  proved  one  of  the  most  serious  of  the  prac- 
tical problems  of  administration.  The  pecuhar  difficulty 
which  arose  to  a  greater  or  less  degree  all  over  the  Union 
was  of  the  following  character.  The  state,  county,  and 
township  authorities  drew  a  very  large  proportion,  in 
the  case  of  the  two  latter  practically  all,  of  their  finan- 


312    THE  STRUCTURE  OF  THE  GOVERNMENT 

cial  support  from  the  proceeds  of  a  direct  tax  laid  on  all 
fonns  of  property.  The  tax  apphed  both  to  real  and 
personal  property — land,  houses,  buildings,  horses,  car- 
riages, furniture,  stocks  and  shares,  mortgages,  bonds, 
etc.  At  its  origination  it  seemed  eminently  reasonable. 
The  States  were  forbidden  to  levy  import  and  export 
duties,  and  to  levy  excise  duties  would  tend  to  drive  out 
manufactures  to  a  more  favored  locahty;  they  therefore 
of  necessity  fell  back  on  direct  taxes.  And  of  all  such,  a 
single  tax,  laid  on  all  forms  of  property  ahke,  seemed  to 
commend  itself  as  the  most  uniform  and  the  most  equi- 
table. In  practice  it  has  shown  itself  to  be  distressingly 
inequitable.  This  was  due  in  part  to  the  manner  of  its 
assessment,  which  was  made  as  follows.  The  state  au- 
thorities computed  the  amount  of  the  direct  tax  needed 
for  their  purposes,  and  divided  it  up  among  the  coun- 
ties in  the  proportion  of  the  value  of  assessed  property  in 
each.  To  the  sum  thus  called  for  each  county  added  the 
amount  needed  for  its  own  use  and  then  distributed  it  in 
like  manner  among  its  townships,  again  according  to  the 
proix)rtional  value  of  the  assessed  property  in  each.  To 
this  sum  the  township  added  what  was  needed  for  its 
own  purposes,  usually  the  largest  amount  of  all.  The 
total  thus  reached  was  distributed  among  all  the  prop- 
erty-holders of  the  township  according  to  their  propor- 
tion of  assessed  property;  in  other  words  the  total  of  the 
assessed  property  was  divided  by  the  total  tax  to  be  col- 
lected, and  a  tax  rate  was  thus  obtained  which  was  lev- 
ied on  all  the  property.  If,  for  example,  the  total  of  the 
property  was  worth  $5,000^000,  and  the  total  tax  to  be 
collected  was  $100,000,  then  the  tax  rate  would  be  put 
at  one  fiftieth  or  two  per  cent.  Under  such  a  system, 
then,  everything  turned  on  the  assessment.  If  one 
county  had  been  assessed  for  very  much  less  property 


LOCAL  GOVERNMENT  313 

than  it  actually  had,  then  the  amount  of  the  tax  as- 
signed to  it  by  the  State  would  be  very  much  less  than  it 
should  be,  but  at  the  expense  of  the  other  counties,  for 
the  rate  all  round  would  need  to  be  higher  in  order  to 
supply  the  fixed  quantity  of  money  asked  for.  Or  again 
let  us  suppose  that  in  one  of  the  townships  the  property 
was  assessed  for  very  much  less  than  it  was  worth. 
Then  the  township  in  which  the  assessment  was  too  low 
was  given  less  than  its  share  of  the  coimty  tax,  but  al- 
ways at  the  expense  of  the  other  townships,  on  account 
of  the  rate  being  of  necessity  higher  than  would  be 
needed  if  the  assessment  were  larger.  Finally,  within 
the  township  itself  precisely  the  same  thing  happened 
among  individuals.  Any  one  whose  property  was  put  at 
too  low  a  valuation,  or  not  valued  at  all,  escaped  at  the 
expense  of  his  neighbors;  and  the  more  the  property  in 
general  escaped  assessment  and  remained  invisible,  the 
higher  became  the  tax  rate.  Hence  arose  what  is  called 
competitive  under-assessment,  the  counties  and  town- 
ships vying  with  one  another  in  attempting  to  make 
their  findable  property  as  small  as  possible.  The  asses- 
sors, moreover,  being  elective  officers,  elected  in  most 
cases  for  a  very  short  term,  were  personally  interested 
in  not  making  the  total  property  of  their  area  stand  at 
too  high  a  figure. 

The  upshot  was  that  while  the  system  was  originally 
devised  as  the  most  equitable  form  of  universal  taxation 
possible,  in  its  actual  operation  nothing  could  be  more 
vicious  and  inequitable.  For  it  is  to  be  observed  that  it 
in  reahty  discriminates  most  unfairly  between  different 
kinds  of  property.  Real  estate,  for  example  (lands  and 
buildings),  is  much  less  easy  to  conceal  than  such  forms 
of  property  as  shares  in  bank  stock,  bonds,  debentures, 
etc.  In  illustration  of  this  it  may  be  mentioned  that  in 


314    THE  STRUCTURE  OF  THE  GO\^RXMENT 

the  assessment  of  property  in  Brooklyn  in  1895,  real  es- 
tate constituted  over  ninety-eight  per  cent  of  the  total 
values.  Some  years  ago  (1884)  a  tax  commission  in 
West  Virginia  reported  in  reference  to  personal  prop- 
erty, "Things  have  come  to  such  a  condition  in  West 
Virginia,  that  as  regards  paying  taxes  on  this  class  of 
property,  it  is  almost  as  voluntary,  and  is  considered 
pretty  much  in  the  same  Ught,  as  donations  to  the 
neighboring  chiu^ch  or  Sunday  school."  In  addition  to 
this,  a  premium  is  put  upon  dishonesty,  since  people  of  a 
pliable  conscience  will  find  it  easier  to  dodge  the  assess- 
ment than  those  of  a  more  uncompromising  morality. 
Even  some  of  the  measures  intended  to  prevent  this,  as, 
for  example,  the  adoption  of  a  schedule  of  property 
made  out  and  sworn  to  by  the  owner,  and  the  penalties 
(legal  and  spiritual)  for  perjury,  etc.,  accentuate  the 
evil  rather  than  Ughten  it.  The  worst  feature  of  all  is 
that  when  under-assessment  once  sets  in,  it  moves  for- 
ward at  an  accelerated  pace.  For  the  higher  the  rate 
rises,  the  more  imperative  does  it  become  for  each  indi- 
vidual to  understate  his  property.  But  the  more  the 
property  is  understated,  the  higher  the  rate  rises,  and 
thus  the  worse  the  situation  is,  the  worse  it  tends  to  be- 
come. In  some  cases  the  rate  becomes  so  high  that  to 
tell  the  literal  truth,  and  pay  the  full  tax  rate,  would 
mean  absolute  ruin.  Thus,  in  some  of  the  "towns"  of 
Chicago,  previous  to  the  reform  of  the  assessment  sys- 
tem some  years  ago,  the  rate  stood  as  high  as  eight  and 
nine  per  cent.  Now  it  must  be  remembered  that  this 
means,  not  the  contribution  of  eight  per  cent  of  one's 
income,  but  eight  per  cent  of  one's  capital  property.  To 
actually  pay  this  and  continue  in  business  would  not 
for  ordinary  enterprises,  be  found  possible.  The  result 
is  that  both  the  assessors  and  the  assessed  took  to  adopt- 


LOCAL  GOVERNMENT  315 

ing  a  rough  scale  of  depreciation,  accepting  as  accurate  a 
figiu'e  that  is  perhaps  one  fifth  or  one  tenth  of  the  proba' 
ble  actual  value  of  the  property  concerned.  Meanwhile 
the  incentive  to  dishonesty  remained  and  a  vast  amount 
of  property  escaped  untaxed.^ 

Throughout  the  entire  United  States  opinion  is  agreed 
as  to  the  inefficiency  and  iniquitousness  of  the  general 
property  tax.  It  has  been  condenmed  by  a  long  series  of 
state  tax  commissions  held  within  the  last  forty  years, 
and  by  all  the  highest  authorities  on  the  subject  of  pub- 
lic finance.  "Instead  of  being  a  tax  on  personal  prop)- 
erty,"  said  the  New  York  commissioners  of  1872,  "it  has 
in  effect  become  a  tax  upon  ignorance  and  honesty. 
That  is  to  say,  its  imposition  is  restricted  to  those  who 
are  not  informed  of  the  means  of  evasion,  or,  knowing 
the  means,  are  restricted  by  a  nice  sense  of  honor  from 
resorting  to  them."  The  Illinois  commission  of  1886 
spoke  of  it  as  "a  school  for  perjury,  promoted  by  law." 
The  New  York  report  of  1893  says,  "It  puts  a  premium 
on  perjury  and  a  penalty  on  integrity."  The  Industrial 
Commission  of  1899-1902  in  its  final  report  (vol.  xix) 
quotes  as  illustrative  of  the  general  feehng  the  words  of 
a  special  committee  on  taxation  which  reported  to  the 
California  Senate  in  1901:  "From  Maine  to  Texas  and 
from  Florida  to  California,  there  is  but  one  opinion  as  to 
the  workings  of  the  present  system.  That  is,  that  it  is 
inequitable,  unfair,  and  positively  unjust.  Theoretically 
all  property  is  called  upon  to  bear  a  share  of  the  public 
burdens  in  exact  proportion  to  its  present  value.  In 
practice  that  end  is  admittedly  not  even  approached. 

'  For  detailed  statistics  as  to  the  operation  of  the  property  tax,  the 
following  works  may  be  consulted:  Seligman,  Essays  in  Taxation, 
chaps.  I,  II,  and  xiii  (3d  edition,  1900) ;  Ely,  Taxation  in  American 
States  and  Cities;  Fined  Report  of  the  Industrial  Commission,  vol.  xix, 
pp.  1031-71. 


316    THE  STRUCTURE  OF  THE  GOVERNMENT 

Scarcely  a  fractional  part  of  the  property  in  any  Com- 
monwealth is  brought  to  the  tax  rolls.  This  is  especially 
true  of  personal  property  in  its  most  coveted  forms, 
money  and  credits."  That  the  reform  of  local  taxation 
is  one  of  the  crying  needs  of  the  American  system  of 
government  is  only  too  obvious.  But  before  considering 
the  steps  that  have  already  been  taken  in  that  direction, 
and  the  various  plans  suggested,  it  will  be  well  to  set  in 
comparison  the  systems  adopted  in  other  countries. 

8.  Systems  of  local  taxation  in  other  countries.  Com- 
plicated as  is  the  local  administration  of  England,  there 
are  certain  features  of  its  financial  system  which  merit 
attention  in  connection  with  the  present  question.  In 
the  first  case  the  central  government  does  not  divide  or 
apportion  taxes  among  the  county  councils  for  collec- 
tion, so  that  all  question  of  competitive  under-assess- 
ment  as  between  counties  is  set  aside.  Nor  is  there,  for 
reasons  which  will  appear  presently,  competitive  under- 
assessment between  the  minor  areas.  In  the  next  place 
the  whole  field  of  personal  property,  tangible  and  in- 
tangible, is  left  out  of  local  taxation.  Thus  the  Amer- 
ican difficulty  of  finding  "invisible  property"  is  avoided. 
But  at  the  same  time  such  property  contributes  to  the 
national  finance  through  the  income  tax,  which,  among 
its  other  categories,  is  levied  on  stocks,  shares,  etc.,  and 
paid  at  the  source.  Though  the  operation  of  the  income 
tax  is  of  com^e  fallible,  and  allows  the  more  fluid  forms 
of  income  (professional,  etc.)  partially  to  escape,  it 
nevertheless  serves  to  make  the  intangible  forms  of 
property  contribute  to  the  general  revenue  of  the  state. 

The  actual  revenues  of  the  local  authorities  consist 
partly  of  sums  handed  over  to  them  by  the  central  gov- 
ernment, and  partly  of  "rates"  (proportional  taxes) 
which  they  levy  on  real  property.  To  the  first  class  be- 


LOCAL  GOVERNMENT  317 

long  certain  payments  made  by  the  national  govern- 
ment to  the  counties  (administrative  counties,  and 
county  boroughs),  representing  a  fraction  of  the  amount 
received  as  the  proceeds  of  Ucense  taxes  (hquor,  dogs, 
guns,  etc.),  a  fraction  of  the  estate  duties  collected,  and, 
under  a  statute  of  1890,  the  proceeds  of  certain  duties  on 
spirits  and  beer.  In  other  words,  the  national  govern- 
ment collects  various  taxes,  and  shares  them  among  the 
counties.  The  rest  of  the  local  revenue  comes  chiefly 
from  direct  taxation  or  from  municipal  services.  The 
rate  is  levied  not,  as  in  America,  on  the  capital  value, 
but  merely  on  the  annual  value  of  real  property.  A  com- 
mittee of  the  county  council  fixes  the  county  rate,  assign- 
ing to  each  parish  a  standard  of  what  the  rate  is  to  pro- 
duce. This  involves  assessment  as  in  America  of  the 
property  value  in  the  parish,  but  the  valuation  is  never 
made  by  an  elected  parish  officer.  The  county  authori- 
ties follow  the  valuation  made  by  the  national  govern- 
ment for  the  raising  of  the  income  tax,  or  that  of  the 
poor-law  authorities,  or  at  times  make  a  valuation  of 
their  own.  Boroughs,  districts,  and  parishes  levy  similar 
rates  on  the  annual  value  of  real  property.  The  differ- 
ence in  conditions  between  England  and  America  is  seen 
in  the  fact  that  while  the  American  property  tax,  as  it 
was  at  the  opening  of  this  century,  ranged  (nominally) 
from  about  one  and  one  half  to  ten  per  cent  on  capital 
value,  the  total  of  various  kinds  of  English  local  rates 
stood  at  about  four  and  a  half  shillings  in  the  pound  of 
annual  value;  in  other  words,  while  the  nominal  Ameri- 
can rate  is  at  one  to  ten  per  cent  of  capital,  the  Eng- 
lish rate  is  twenty-two  and  one  half  per  cent  of  income. 
It  must  not  be  thought,  from  what  has  been  said 
above,  that  the  situation  in  regard  to  local  finance  in 
England  is  altogether  felicitous.   There,  however,  the 


318    THE  STRUCTURE  OF  THE  GOVERNMENT 

feature  which  occasions  grave  apprehension  is  not  the 
method  of  assessment  and  levy,  but  the  great  increase 
of  local  expenditure  and  local  debt.  The  local  expenditure 
of  England  and  Wales  in  1868  was  only  thirty  miUion 
pounds;  in  1900  it  reached  one  hundred  and  one  million; 
in  1914  it  stood  at  one  hundred  and  sixty-nine  million 
pounds.  Much  of  this  has  been  paid  for  with  borrowed 
money,  and  the  total  of  local  indebtedness  even  before 
the  war  had  reached  £562,630,045.  As  a  result  local 
rates  have  increased  to  a  great,  indeed  to  an  alarming 
extent.  The  rate  per  pound  in  1891-92  stood  at  3s.  Sd.; 
in  1895-96  at  4s.  5d.;  in  the  largest  boroughs  in  1910  the 
rate  exceeded  7  shillings  and  in  the  metropolitan  bor- 
oughs of  London  in  1918-19  the  rates  in  several  cases 
reached  and  in  some  far  exceeded  10  shillings  in  the 
pound.  It  is  true  that  the  borrowing  power  of  local  bod- 
ies is  subject  to  the  sanction  of  the  local  government 
board,  and  the  accounts  of  most  local  bodies  are  audited 
by  district  auditors,  appointed  by  the  same  authority, 
and  having  a  power  to  disallow  items.  ^  A  further  exten- 
sion of  this  apphcation  of  central  control  would  seem 
justified  by  the  circumstances. 

In  France  ^  local  government  presents  certain  fea- 
tures differing  in  a  marked  degree  from  the  systems 
both  of  England  and  America.  In  the  first  place,  use 
is  made  of  a  sort  of  internal  customs  duty,  the  oc- 
troi, levied  on  various  classes  of  goods  brought  into 
towns.  In  its  origin  this  tax  goes  back  to  the  institutions 
of  the  Roman  Empire.  Under  the  old  French  monarchy 
the  octroi  was  farmed  out,  which  led  to  great  abuses  and 
to  the  abolition  of  all  such  taxes  during  the  Revolution. 

*  Odgers,  Local  Government,  chap.  xii. 

*  For  local  taxation  in  France,  see  Leroy-Beaulieu,  TraiU  de  la 
Science  dea  Finances,  vol.  i  (6th  edition,  1899). 


LOCAL  GOVERNMENT  319 

But  the  system  arose  again,  and  in  spite  of  its  obvious 
defects  increased  to  such  great  proportions  that  by  the 
end  of  the  nineteenth  century  some  fifteen  hundred 
cities,  towns,  and  villages  made  use  of  it  and  it  produced 
one  third  of  their  total  municipal  revenue.  The  chief 
articles  thus  taxed  are  wines,  beer,  and  spirits  generally, 
oil,  meat,  combustibles,  fodder,  and  building  materials. 
This  part  of  the  French  system  is  certainly  to  be  con- 
demned. It  hampers  trade,  and  is  troublesome  and  ex- 
pensive in  collection.  Unfortunately,  like  other  indirect 
taxes,  it  has  the  insidious  quality  which  renders  its  use 
tempting  to  municipal  authorities. 

For  the  rest  of  the  municipal  revenue  and  for  the 
revenue  of  the  department,  a  quite  different  plan  is 
used.  Apart  from  the  income  tax,  there  are  four  great 
direct  taxes  levied  by  the  French  national  government 
—  the  tax  on  real  estate,  tax  on  personalty  and  persons 
(impdt  mobilier  d  personnel),  the  door  and  window  tax, 
and  the  tax  on  business.  Of  these  the  last  named  is  9 
graded  tax  on  all  forms  of  business  enterprise,  varying 
according  to  the  kind  of  business,  the  magnitude  of  the 
business,  and  the  location  of  the  business.  The  whole 
classification  falls  within  the  scope  of  the  central  gov- 
ernment; there  is  no  apportionment  among  departments, 
etc.,  and  hence  no  chance  of  competitive  under-assess- 
ment.  It  is  as  if  the  State  of  Massachusetts  imposed  a 
license  tax  on  all  forms  of  business,  which,  other  things 
being  equal,  would  be  higher  in  Boston  than  in  a  town  of 
fifty  thousand  people,  and  higher  in  the  case  of  bank- 
ing business,  other  things  being  equal,  than  for  a 
grocery  business,  and  finally  would  be  higher  in  the 
case  of  a  business  employing  one  hundred  men  than 
in  one  which  employed  only  twenty,  still  with  the 
condition  that  other  things  were  equal.   The  total  tax 


320    THE  STRUCTURE  OF  THE  GOVERNMENT 

collected  would  therefore  vary  with  the  changing  fac- 
tors. Its  use  by  the  government  of  France  was  originally 
meant  to  supplement  the  lack  of  a  national  income  tax. 
Of  the  other  taxes,  that  on  real  estate  is  based  on  what 
is  called  a  "cadastre,"  or  fixed  valuation  made  by  the 
government  on  a  basis  of  area,  productivity,  value  of 
buildings,  etc.  The  part  of  this  valuation  referring 
to  land  remains  unchanged  for  a  long  time  together 
(1821-90).  That  on  buildings  has  been  frequently 
revised.  The  former  portion  of  the  tax  is  apportioned; 
that  is  to  say,  the  government  decides  on  a  total  sum 
and  collects  it  from  the  departments  in  proportion  to 
the  valuation  of  their  land,  the  rate  thus  varying  as  in 
the  United  States.  In  the  case  of  the  latter  portion  of 
the  tax,  the  government  fixes  the  rate  and  takes  the 
proceeds.  It  is  the  duty  of  the  local  authorities  in  the 
arrondissements  to  share  the  apportioned  tax  among 
the  communes;  but  as  the  valuation  on  which  they 
proceed  is  made  for  them,  they  are  in  a  totally  differ- 
ent position  from  that  of  the  American  assessors.  The 
so-called  personalty  and  persons  tax  (impSt  mobilier 
et  personnel)  is  in  reality  an  apportioned  tax  on  houses 
together  with  a  capitation  tax  of  the  value  (according 
to  locality)  of  three  days'  labor.  Finally  the  "door  and 
window  tax"  is  an  apportioned  tax  on  houses. 

It  has  been  necessary  to  show  the  nature  of  these 
direct  taxes  in  order  to  explain  the  French  system  of 
local  taxation.  The  local  revenue  is  obtained  by  the 
addition  of  a  certain  percentage  to  the  sums  thus  col- 
lected. The  "centimes  additionnels,"  as  they  are  called, 
are  settled  by  the  central  government,  and  collected 
by  its  agents.  It  is  for  this  reason  that  it  can  be  said 
of  the  general  council  of  the  department  that  it  has  no 
power  of  taxation.    The  "centimes  additionnels,"  or 


LOCAL  GOVERNMENT  321 

sur-tax,  added  to  the  "principal"  of  the  French  direct 
taxes,  is  greater  than  the  principal  itself.  No  sur-tax  is 
added  to  the  capitation  tax  mentioned  above.  ^ 

In  Prussia  "^  use  is  made  of  the  octroi '  as  in  France, 
its  burden  falling  upon  mill-ground  articles,  cattle, 
meat,  etc.  There  are  also,  as  in  France,  sur-taxes 
added  to  the  direct  taxes  of  the  state  government  and 
other  direct  taxes  whose  proceeds  go  wholly  to  the 
local  authorities.  The  direct  taxes  of  the  first  class  in- 
clude the  income  tax  and  the  tax  on  circulating  busi- 
ness; those  of  the  second  class  comprise  the  taxes  on 
land,  houses,  and  fixed  business.  The  extra  percentage, 
or  sur-tax,  actually  collected  varies  greatly,  but  is  un- 
der the  control  of  the  central  government.  The  land 
assessment  is  made  by  commissioners  appointed  by  the 
state  government,  together  with  a  staff  of  technical 
experts  in  each  province.  The  persons  liable  to  the 
income  tax  are  divided  into  classes  within  which  all 
pay  the  same.  The  assessment  is  made  by  a  special 
board  in  each  circle  or  county,  partly  appointed  by 
the  local  authorities,  but  in  the  majority  elected  by  the 
persons  liable  to  tax.  Unfortunately  the  method  of 
ascertaining  income  has  not  proved  satisfactory.  Till 
recently  (1891),  the  board  relied  largely  on  circum- 
stantial evidence  of  income  (style  of  house,  obvious 
expenditure,  etc.).  The  objection  that  this  was  an  in- 
quisitorial proceeding  led  to  the  adoption  of  self-assess- 
ment by  declaration.  In  spite  of  the  severe  penalties 
for  fraud,  a  great  part  of  income  escapes.  The  mode 
of  assessing  the  business  tax  is  peculiarly  interesting. 
The  French  system  of  classification  by  industries  and 

I  In  some  cases,  however,  "extra  centimes"  are  added  to  the  fixed 
tax  for  state  purposes. 

*  As  before  the  Great  War.         *  The  octroi  is  not  used  by  Berlin. 


322    THE  STRUCTURE  OF  THE  GOVERNMENT 

by  population  of  locality  was  abandoned  in  1891.  In- 
stead of  it  businesses  are  grouped  into  four  classes  on 
a  joint  basis  of  capital  invested  and  earnings  made. 
The  assessment  of  the  top  class  is  made,  province  by 
province,  by  assessors  of  whom  one  third  are  nomi- 
nated by  the  minister  of  finance,  and  two  thirds  by  the 
committee  of  the  province  (the  executive  committee 
of  the  elected  portion  of  the  provincial  government). 
The  tax  amounts  to  about  one  per  cent  of  earnings. 
The  two  middle  classes  are  taxed  district  by  district 
(Besirk),  and  the  lowest  class  is  taxed  in  each  "circle," 
or  county.  The  government  assigns  a  lump  sum  (based 
on  the  average  earnings  of  included  businesses)  to 
be  collected  from  all  businesses  of  the  same  class  in 
the  same  district  (or  minor  district),  and  this  is  shared 
among  the  individual  business  concerns  by  a  tax  com- 
mittee elected  from  their  number.  It  must  be  observed 
that  this  elected  committee  has  no  power  to  spare  its 
constituents  as  a  total.  This  form  of  tax  has  proved 
singularly  efl&cient. 

9.  Reform  of  the  American  system.  Let  us  now, 
in  the  Ught  of  what  has  been  said  in  regard  to  foreign 
countries,  consider  some  of  the  chief  proposals  for 
the  reform  of  the  American  system  of  local  taxation, 
and  the  steps  that  have  already  been  taken  in  that 
direction.  In  the  first  place  we  have  the  frequent  sug- 
gestion of  a  more  stringent  enforcement  of  existing 
laws.  This  is  what  was  done  in  Ohio  under  the  "tax 
inquisitor  law,"  whereby  county  commissioners  could 
engage  an  individual  to  "discover"  personal  property, 
paying  him  a  proportion  of  the  tax  thereby  realized. 
In  view  of  the  obnoxious  character  of  the  property  tax 
so  generally  condemned,  mere  rigor  of  enforcement 
only  f^gravates  the  situation.    Such  a  system  intro- 


LOCAL  GOVERNMENT  323 

duces  a  feature  of  management  which  should  have  no 
place  in  public  administration,  except  in  dealing  with 
the  criminal  class.  Nor  is  the  system  of  making  the 
legal  assessment  value  (as  has  been  done  in  various 
places)  only  a  fraction  of  the  true  value,  of  any  perma- 
nent efficacy.  It  affords,  it  is  true,  the  opportunity  for  a 
general  repentance  and  a  new  start,  but  the  viciousness 
of  the  assessment  system  is  not  altered  thereby.  The 
proposals  which  appear  to  be  substantiated  by  the  expe- 
rience of  foreign  countries  are  (1)  the  separation  of  the 
sources  of  state  and  local  revenue,  and  the  abandoning 
of  the  system  of  apportionment,  (2)  the  abohtion  of  the 
property  tax  on  personal  property,  and  (3)  the  creation 
of  other  forms  of  revenue  to  fill  the  void  thus  created 
and  to  satisfy  the  equities  of  taxation. 

The  first  of  these  proposals  has  been  very  widely 
endorsed.  In  Oregon  under  a  statute  operative  in  1905, 
apportionment  of  state  taxes  among  the  counties  was 
abandoned.  The  proportion  of  state  taxes  paid  by  each 
county  was  made  to  depend  on  the  ratio  of  its  own  ex- 
penditure to  the  total  expenditure  of  the  counties.  The 
Industrial  Commission  in  its  final  report  (1902)  recom- 
mend that  the  States  (not  the  localities)  abandon  the 
property  tax  altogether.  In  the  second  place  the  abo- 
htion of  the  tax  on  personalty  would  leave  only  land 
and  buildings  subject  to  the  property  tax.  The  motive 
for  concealment  would  be  lessened,  since  there  would 
no  longer  exist  the  sense  of  injustice  at  the  escape  of 
personalty  from  a  tax  to  which  it  was  legally  liable. 
The  experience  of  England  and  Prussia  certainly  falls 
in  with  the  suggestion  of  the  commission  that  this  tax 
should  be  for  local  purposes  only.  It  might  seem  advis- 
able that  when  the  system  of  elected  assessors  exists 
it  should  be  abandoned  in  favor  of  assessors  appointed 


324    THE  STRUCTURE  OF  THE  GOVERNMENT 

by  the  government  of  the  State  and  holding  an  inde- 
pendent tenure  of  office.  Such  a  suggestion  is  but 
little  consonant  with  the  current  poUtical  ideas  of  the 
American  people.  But  the  experience  of  European 
countries  certainly  favors  it.  A  valuation  of  land  on 
the  French  system  by  general  survey  and  estimate 
would  reduce  that  portion  of  the  tax  to  a  stable  basis. 
A  number  of  States  have  already  abandoned  the  taxa- 
tion of  personal,  or  at  least  of  "intangible,"  property 
under  the  property  tax.  Here,  however,  the  question  of 
constitutional  powers  intruded  itself  inasmuch  as  most 
of  the  state  constitutions  contained  provisions  necessi- 
tating the  uniform  taxation  of  property.  Amendments 
to  the  constitutions  have  been  necessary  to  remove  this 
difficulty. 

In  reference  to  the  third  question,  that  of  creating 
other  sources  of  revenue,  much  has  already  been  done 
in  some  States  and  there  is  much  that  naturally  sug- 
gests itself.  The  successful  business  taxes  of  Prussia 
and  France  seem  to  indicate  a  useful  form  of  taxation. 
The  Industrial  Commission  recommended  the  adoption 
of  taxes  of  this  nature  as  a  supplement  to  the  property 
tax.  In  several  of  the  Southern  States  there  already 
exist  "licenses"  or  "privilege  taxes"  which  are  of 
this  kind.  They  are  by  no  means  so  elaborate  as  the 
Continental  taxes,  varying  only  according  to  population 
or  other  evident  criteria,  but  not  proportional  to  the 
volume  of  business  transacted.  The  taxation  of  income 
has  also  been  widely  recommended  and  is  now  adopted 
in  many  States.  Theoretically  the  income  tax  is  the 
most  equitable  of  all,  but  experience  shows  it  Uable  to 
grave  inequalities.  It  might  well  form  a  part  of  a  re- 
constructed tax  system  for  state  purposes,  especially  if 
income  from  real  estate  were  omitted,  being  already 


LOCAL  GOVERNMENT  325 

taxed  under  the  local  property  tax,  and  if  the  English 
system  of  tapping  the  income  at  its  source  were  put  into 
force.  An  amended  taxation  of  corporations  —  which 
are  now  taxed  in  various  ways,  on  the  value  or  on  the  cost 
of  property,  on  capital  stock,  on  bonded  debt,  on  gross 
earnings,  on  dividends,  on  net  earnings,  etc.  —  is  also 
proposed.  The  taxation  of  inheritances  as  a  mode  of 
state  revenue  is  also  being  greatly  extended.  In  simi- 
mary  it  may  be  said  that  what  is  needed  is  a  complete 
reconstruction  of  local  taxation.  The  general  object 
should  be  to  avoid  the  present  evils  of  competitive  un- 
der-assessment  and  invisible  property  and  to  institute  a 
new  composite  system  of  revenue  calculated  to  properly 
distribute  the  burden  of  taxation. 

READINGS  SUGGESTED 

Courtney,  L.,  Tfie  Working  Constitution  of  the  United  Kingdom 

(1901),  part  II,  chap,  i,  pp.  205-20. 
Lowell,  A.  L.,  Governments  and  Parties  in  Continental  Europe 

(1897),  vol.  I,  chap,  i,  pp.  36-43,  30&-34. 

FURTHER  AUTHORITIES 

Odgers,  W.,  Local  Government  (1901). 
Eaton,  D.  B.,  Government  of  Municipalities  (1899). 
Ducrocq,  Cours  du  Droit  Administratif,  vol.  i  (1881). 
Seligman,  E.  R.,  Essays  in  Taxation  (3d  edition,  1900). 
Report  of  the  Industrial  Commission,  vol,  xix. 
Ely,  R.,  Taxation  in  American  States  and  Cities  (1888). 
Leroy-Beaulieu,  P.,  Traits  de  la  Science  des  Finances  (6th  edi- 
tion, 1899),  vol.  I. 
Jenks,  E.,  OvUine  of  English  Local  Government  (1894). 
Bryce,  J.,  American  Commonwealth  (1899),  vol.  i. 
Fiske,  J.,  Civil  Government  in  the  United  States  (1891). 
Howe,  F.  C,  The  British  City  (1907). 
Ashley,  P.,  Local  and  Central  Government  (1906). 
Munro,  W.  B.,  The  Government  of  European  Cities  (1909). 
Munro,  W.  B.,  The  Government  of  American  Cities  (1910). 
Brudre,  H.,  The  New  City  Government  (1912). 


CHAPTER  Vm 
PARTY  GOVERNMENT 

1.  Conflict  of  opinion  on  the  merits  of  party  government  —  2.  Origin 
and  development  of  the  party  system  in  England  —  3.  Origin  and 
growth  of  political  parties  in  the  United  States  —  4.  The  organiza- 
tion of  American  political  parties  —  5.  Reform  of  the  system  —  6. 
Party  machinery  in  Great  Britain  —  7.  The  party  groups  of  Con- 
tinental Europe. 

I.  Conflict  of  opinion  on  the  merits  of  party  govern- 
ment. By  a  political  party  we  mean  a  more  or  less 
organized  group  of  citizens  who  act  together  as  a  politi- 
cal unit.  They  share,  or  profess  to  share,  the  same  opin- 
ions on  pubhc  questions,  and  by  exercising  their  voting 
power  towards  a  common  end,  seek  to  obtain  control 
of  the  government.  They  constitute  something  like  a 
joint-stock  company  to  which  each  member  contributes 
his  share  of  poUtical  power.  They  are  thus  collectively 
able  to  acquire  the  strength  which  it  would  have  been 
impossible  for  them,  acting  singly,  to  obtain.  In  all 
except  the  autocratic  modem  governments  this  sys- 
tem of  deUberate  collective  action  supplies  the  motive 
power  which  keeps  the  wheels  of  administration  moving. 
Though  standing  to  a  large  extent  outside  of  the  legal 
structure  of  the  state,  party  government  is  the  vital 
principle  of  its  operation.  The  Constitution  of  the 
United  States  does  not,  indeed,  presume  the  existence 
of  poUtical  parties;  but  in  the  evolution  of  American 
government  in  the  nineteenth  century,  they  have  come 
to  be  its  central  feature.  In  the  United  Kingdom  the 
law  of  the  constitution  knows  almost  nothing  of  any  such 
institution;  but  the  customary  operation  of  the  consti- 


PARTY  GOVERNMENT  327 

tution  is  altogether  based  on  the  supposition  of  this 
sort  of  collective  action,  for  the  whole  cabinet  system 
—  which  we  have  seen  to  be  the  central  fact  of  Brit- 
ish government  —  presupposes  the  united  action  which 
alone  can  render  its  existence  possible.  The  countries 
which  have  deliberately  adopted  parUamentary  govern- 
ment —  France,  Italy,  Canada,  AustraUa,  etc.  —  have 
done  so  on  the  same  assumption.  The  law  cannot,  in- 
deed, expressly  decree  the  existence  of  parties,  but  it 
can  set  up  institutions,  as  in  the  countries  named,  which 
become  meaningless  without  them.  For  a  proper  study 
of  modern  government  it  is,  therefore,  necessary  to  take 
full  account  of  this  form  of  joint  political  effort  and  to 
study  the  organization  and  operation  of  modern  parties. 
We  may  thus  form  some  judgment  as  to  the  value  and 
efficiency  of  the  political  expedient  thus  devised. 

Party  government,  indeed,  has  been  variously  judged. 
It  has  been  extolled  as  the  most  natural  and  condemned 
as  the  most  unnatural  of  political  phenomena.  Those 
who  judge  it  harshly  are  shocked  by  the  peculiarly 
artificial  agreement  which  it  sets  up  among  the  group 
of  party  adherents,  and  their  equally  artificial  disagree- 
ment with  their  opponents.  Each  side  remains  in  a  state 
of  willful  inconvincibility,  with  individual  judgment 
frozen  tight  in  the  shape  of  the  party  mould.  This  kind 
of  unanimity  seems  to  its  critics  false  and  injiu-ious; 
it  suppresses  that  very  freedom  of  individual  opinion 
and  action  which  is  meant  to  be  the  vital  principle  of 
democratic  government.  Where  two  great  pohtical 
parties  dispute  the  field,  it  presumes,  as  has  been  said 
by  Professor  Gold  win  Smith,  "a  bisection  of  human 
character,"  which  does  not  in  reahty  exist.  Those  who 
defend  party  government  take  an  entirely  opposite 
ground.  They  draw  attention  to  the  fact  that  in  a  cer- 


328    THE  STRUCTURE  OF  THE  GOVERNMENT 

tain  sense  the  bisection  of  human  nature  is  altogether 
in  accordance  with  fact.  There  are  naturally,  they 
claim/  four  kinds  of  men  —  those  who  wish  to  return 
to  the  methods  and  institutions  of  the  past  (reaction- 
aries), those  who  wish  to  retain  those  of  the  present 
(conservatives),  those  who  wish  to  reform  present 
institutions  (Uberals),  and  those  who  desire  to  abolish 
them  (radicals).  If  for  evident  reasons  of  expediency 
the  two  former  classes  and  the  two  latter  act  together 
poUtically,  we  get  a  division  into  two  great  political 
parties,  resting  on  fundamental  psychological  princi- 
ples. It  is  further  argued  that  far  from  being  in  con- 
flict with  the  theory  of  democratic  government,  it  is  the 
only  thing  which  renders  the  latter  feasible.  For  it  is 
impossible  for  all  the  people  to  rule  all  the  time  — 
taken  singly.  The  rule  of  the  people  can  only  mean 
the  rule  of  a  majority.  Now  the  only  way  in  which  any 
particular  set  of  people  can  remain  together  as  a  major- 
ity, and  thus  render  possible  a  stable  and  consistent 
administration  of  public  affairs,  is  that  the  members 
of  the  ruling  group  shall  "agree  to  agree"  with  one 
another.  A  modern  democratic  state  without  this 
somewhat  artificial  and  yet  essential  unanimity  would 
become  a  brawling  chaos  of  individual  opinions. 

The  validity  of  the  two  contentions  thus  urged  will 
depend  in  some  measure  on  the  circumstances  of  the 
tune  and  country.  It  often  happens  —  as  in  the  case 
of  the  slavery  question  or  the  silver  question  in  the 
United  States,  the  free-trade  question  in  England,  etc. 
—  that  some  one  paramount  political  issue  presents  it- 
self which  of  necessity  separates  the  community  into 
affirmative  and  negative  divisions.  The  importance  of 
the  issue  is  such  that  the  supporters  of  either  side  are 

>  See  W.  E.  H.  Lecky,  Democracy  and  Liberty. 


PARTY  GOVERNMENT  329 

perfectly  willing  to  subordinate  to  it  all  minor  matters 
and  to  act  in  concert  in  everything  for  the  sake  of  the 
main  point  to  be  gained.  Two  free-traders  or  two  free- 
silver  men  might  consent  to  vote  and  act  together,  and 
to  put  their  interests  into  the  hands  of  the  same  repre- 
sentative, even  if  the  one  of  them  was  a  prohibitionist 
and  the  other  an  anti-prohibitionist.  It  is  in  such  cases 
as  this  that  the  party  system  seems  eminently  a  defen- 
sible one;  it  offers  a  natural  and  reasonable  method  of 
reaching  the  main  object  to  be  achieved.  This  was  the 
condition  in  the  United  States  in  the  middle  of  the  last 
century.  It  was  also  the  chronic  condition  in  England 
during  a  large  part  of  the  nineteenth  century,  the  general 
idea  of  Uberal  reform  being  opposed  to  the  general  im- 
mobility of  conservatism.  It  was  owing  to  the  existence 
of  this  state  of  things  that  party  government  grew  to  be 
invested  with  an  air  of  inevitability,  and  seemed  to  carry 
with  it  its  own  defense.  On  the  other  hand,  where  no 
such  main  issues  exist  the  party  system  must  depend  for 
existence  on  the  strength  of  its  organization.  It  must 
have  pledges  first  and  principles  after,  and  its  members, 
having  first  decided  to  agree,  must  next  make  up  their 
minds  what  it  is  they  agree  about.  This  is  the  present 
position  of  the  party  system  in  the  United  States.  Fail- 
ing this,  for  default  of  a  main  issue,  poHtical  parties  will 
take  the  form  of  numerous  and  rapidly  changing  groups, 
the  government  being  carried  on  by  temporary  and 
unstable  combinations,  and  the  parties,  having  neither 
traditions  nor  standing  power,  being  animated  with  a 
dangerous  sense  of  irresp)onsibility.  This  is  the  position 
of  affairs  in  France,  Italy,  and  several  Continental 
countries.  At  the  present  juncture,  then,  the  party  sys- 
tem meets  with  keen  criticism  and  speculation  is  rife  as 
to  its  future  evolution. 


330    THE  STRUCTURE  OF  THE  GOVERNMENT 

2.  Origin  and  development  of  the  party  system  in 
England.  The  origins  of  party  government  are 
found  in  England  and  may  be  considered  as  dating 
from  the  Elizabethan  era.  The  Puritans,  opposed  to 
the  intolerance  and  the  extreme  prerogative  of  the 
queen's  government,  exerted  themselves  to  gain  seats 
in  Parliament,  where  their  representatives  acted  as  an 
organized  party  in  arresting  the  royal  grants  of  monop- 
olies, etc.  On  the  basis  thus  formed  grew  up  the  popu- 
lar party,  whose  cohesion  was  rendered  stronger  by  the 
arbitrary  government  of  the  Stuart  kings.  "Sandys, 
Coke,  Eliot,  Selden,  and  Pym,  may  be  regarded,"  says 
Sir  Thomas  May,^  "as  the  first  leaders  of  a  regular  par- 
liamentary opposition."  As  the  resistance  to  the  royal 
tyranny  increased,  the  defenders  of  popular  rights  and 
the  adherents  of  the  crown  changed  from  pohtical  par- 
ties to  the  opposing  factions  of  a  civil  war.  But  after 
the  Restoration  the  same  parliamentary  division  reap- 
pears under  the  name  of  the  Court  Party  and  the  Coun- 
try Party  of  the  reign  of  Charles  II.  With  the  debates 
over  the  Exclusion  Bill  of  1680  (for  debarring  the 
king's  brother  from  the  throne)  the  nicknames  of  Whig 
and  Tory  (terms  equivalent  to  "dough-face"  and 
^'highwayman")  first  appear.  Henceforth  for  a  century 
and  a  half  these  names  indicated  the  two  great  politi- 
cal parties  by  whom  the  parhamentary  activity  of  the 
United  Kingdom  was  controlled.  The  Whigs  were  the 
opponents  of  the  royal  prerogative  and  the  adherents  of 
the  doctrine  of  parhamentary  supremacy;  the  Tories 
advocated  the  power  of  the  crown.  Their  relation  to 
the  later  parties  must  not  be  mistaken.  Neither  was  by 

»  Sir  T.  E.  May  (Lord  Famborough),  in  bis  Constitutional  History, 
vol.  II,  chap.  VIII,  gives  an  account  of  the  rise  and  development  of  the 
party  system  in  the  United  Kingdom. 


PARTY  GOVERNMENT  331 

its  origin  the  party  of  progress  or  reform;  neither  the 
party  of  stability  or  order.  They  represented  merely 
two  different  theories  of  English  constitutional  relations. 
After  the  accession  of  the  House  of  Hanover  the  two 
parties  found  their  positions  curiously  reversed.  The 
Whig3,  the  opponents  of  prerogative,  were  the  support- 
ers of  the  new  dynasty,  while  the  Tories,  the  advocates 
of  prerogative,  were  the  opponents  of  the  holder  of  the 
crown.  This  blunted  the  edge  of  their  original  hostility, 
and  helped  to  convert  them  from  the  position  of  inim- 
ical factions  to  the  decorous  and  official  form  of  opposi- 
tion since  maintained.  Moreover,  the  practical  triumph 
of  the  principle  of  parliamentary  supremacy,  and  the 
recognition  of  the  hopelessness  of  the  Stuart  cause,  led 
to  an  alteration  in  the  distinctive  characteristics  of  the 
two  groups.  From  the  accession  of  George  HI  onwards, 
the  Whigs  tended  to  become  the  advocates  of  reform 
and  progress;  the  Tories  placed  their  faith  in  order  and 
security.  Thus  the  two  changed  into  the  great  Liberal 
and  Conservative  parties  of  the  nineteenth  century.  The 
doctrine  of  liberaUsm  favored  the  increased  "democra- 
tization" of  the  constitution,  the  grant  of  equal  political 
privileges  to  all,  the  abohtion  of  the  remaining  reUgious 
disabilities  and  tests,  the  establishment  of  economic  lib- 
erty of  trade  and  industry.  To  this  the  Conservatives 
opposed  the  historic  view  of  poUtical  rights  that  had 
grown  up  under  the  constitution,  the  safeguarding  of 
vested  interests,  and  the  resistance  of  dangerous  inno- 
vation. But  since  the  middle  of  the  nineteenth  century, 
these  original  characteristics  of  the  two  parties  have 
largely  been  obscured.  The  Conservative  administra- 
tions have  participated  in  many  of  the  great  reforms 
of  the  latter  part  of  the  nineteenth  century  —  the  ex- 
tension of  the  suffrage,  the  reform  of  local  government. 


332    THE  STRUCTURE  OF  THE  GOVERNMENT 

of  Irish  land  tenure,  and  so  forth.  The  more  recent  com- 
plexion and  organization  of  party  life  in  the  United 
ICingdom  will  be  considered  in  a  later  paragraph.    . 

3.  Origin  and  growth  of  political  parties  in  the 
United  States.  In  America  we  may  consider  distinct 
political  parties  as  beginning  with  the  colonial  contro- 
versies of  the  eighteenth  centmy.  The  standing  oppo- 
sition of  the  representative  portion  of  the  colonial 
governments  to  the  governor  and  his  associates,  natu- 
rally divided  poUtical  sympathy  on  much  the  same  lines 
as  in  the  mother  country.  As  in  England  during  the 
Stuart  period,  the  war  of  the  Revolution  changed  the 
partisans  into  armed  combatants.  But  with  the  making 
of  the  first  truly  national  government  (1787)  poUtical 
parties  reappear  on  an  entirely  new  basis.  Those  who 
favored  the  establishment  of  a  strong  central  govern- 
ment became  known  as  the  "Federahsts,"  while  those 
in  favor  of  the  restriction  of  the  federal  power  were 
termed  "anti-Federalists."  After  the  adoption  of  the 
Constitution  the  term  "Federalist"  indicated  those  in 
favor  of  consohdating  and  strengthening  the  federal 
power,  while  those  in  favor  of  the  rights  of  the  States 
were  called  "  Republicans."  The  latter,  being  supported 
by  the  general  trend  of  public  opinion  in  favor  of  the 
rights  of  the  individual  and  the  restriction  of  govern- 
mental functions  to  a  minimum,  then  current  both  in 
Europe  and  America,  eventually  carried  the  day.  The 
Federalists  declined  in  numbers  and  influence,  and 
in  the  early  twenties  were  practically  extinct.  Their 
opponents  had  in  the  early  years  of  the  Constitution 
strengthened  their  hold  upon  popular  sympathy  by 
adopting  the  name  "Democratic  Republican,"  which 
has  developed  into  the  present  term  of  "Democrat." 
After  the  disappearance  of  the  Federalists,  the  absence 


PARTY  GOVERNMENT  333 

of  definitely  marked  political  parties  led  to  a  sort  of 
interregnum  known  historically  as  the  "Era  of  Good 
Feeling";  this  designation  and  the  lapse  of  time  has 
surrounded  with  an  undeserved  halo  a  decade  which 
"was  really,"  says  Professor  Hart,  "a  period  of  bitter- 
ness and  rancor  and  legislative  ineptitude."  ^ 

With  the  advent  of  Andrew  Jackson  (1829)  the 
Democratic  Party  entered  on  a  new  phase,  in  which  it 
stood  for  extreme  individualism,  the  extension  of  the 
suffrage,  and  the  rights  of  "the  people"  in  the  special 
sense  of  the  term.  This  raised  up  in  opposition  the 
party  of  the  Whigs,  advocates  of  strong  government, 
national  improvements  (roads,  canals,  etc.),  and  a  pro- 
tective tariff.  The  rising  predominance  of  the  question 
of  slavery  (1820-60)  sundered  the  Whig  Party  and 
removed  them  from  the  political  arena.  In  their  place 
sprang  up  anti-slavery  parties  of  different  degrees  of  op- 
position. The  voting  strength  of  these  was  finally  gath- 
ered together  as  the  RepubUcan  Party,  opposed  to  the 
further  extension  of  slavery,  though  not  (as  a  party) 
opposed  to  its  existence.  The  Civil  War  removed  the 
main  issue  by  abolishing  slavery.  Since  then  the  same 
two  great  parties  have  remained  in  name,  but  their 
evolution  in  the  last  forty  years  has  rather  taken  the 
form  of  a  consolidation  of  the  organization  of  party 
structure  than  a  collective  adherence  to  any  single 
principle  or  policy.  The  RepubUcans  are  in  favor  of 
protection,  but  the  Democrats  are  certainly  not  free- 
traders. The  Republicans,  but  not  all  of  them,  were  in 
favor  of  the  gold  standard,  and  for  a  time  most  of  the 
Democrats,  but  not  all  of  them,  opposed  it.  The  States 
of  the  South  have  remained  almost  solidly  Democratic, 
but  this  is  by  the  historic  continuity  with  past  condi- 

»  Actual  Government  (1903). 


334    THE  STRUCTURE  OF  THE  GOVERNMENT 

tions.  The  plain  truth  is  that  both  parties  are  largely 
opportunistic,  adapting  their  policy  on  current  ques- 
tions to  the  circumstances  of  the  day,  and  mainly  gov- 
erned in  their  selection  of  pohtical  opinions  by  the  prob- 
abihty  of  pohtical  success.  The  party  organization  has 
become  the  leading  factor,  and  the  party  opinions  have 
taken  a  secondary  place.  A  Republican  is  no  longer  to 
be  defined  as  a  man  who  holds  such  and  such  opinions, 
but  as  a  man  who  adheres  to  the  Repubhcan  organ- 
ization and  will  support  its  candidates.  At  present, 
then,  the  striking  fact  in  connection  with  American  po- 
litical parties  is  the  complete  mechanism  of  their  organ- 
ization. 

In  addition  to  these  two  great  parties  various  minor 
groups  have  appeared  from  time  to  time.  Among  the 
most  notable  of  these  was  the  party  of  the  Populists,  or- 
ganized in  the  Middle  West,  and  representing  especially 
the  interests  of  the  farmers  as  against  the  so-called 
money  power  of  the  capitaUsts  of  the  Eastern  cities. 
The  party  advocated  a  wide  measure  of  government 
ownership,  direct  democracy  under  the  form  of  initiative 
and  referendum,  and  various  measures  of  popular  re- 
form that  have  since  become  the  stock  in  trade  of  the 
various  radical  parties  of  the  present  day.  The  Popuhsts 
carried  four  States  in  the  presidential  election  of  1892, 
but  were  presently  more  or  less  absorbed  with  the  radi- 
cal wing  of  the  Democratic  Party.  A  later  organization 
that  appeared  in  the  opening  decade  of  the  present 
century  was  the  Progressive  Party,  advocating  a  large 
measure  of  social  reform  to  be  effected  by  utiUzing  to 
the  full  the  powers  of  the  central  government.  This 
party  appeared  in  great  strength  in  the  election  of  1912 
when  it  polled  4,119,507  popular  votes  in  a  total  of 
15,031,169.  Meantime  the  growth  of  modern  socialism, 


PARTY  GOVERNMENT  335 

as  described  in  a  later  chapter,  has  brought  into  being 
two  socialist  parties  (the  Socialist  and  the  Socialist 
Labor)  in  the  United  States,  which  undoubtedly  rep- 
resent not  a  transitory  phase,  but  an  abiding  factor  in 
national  politics. 

4.  The  organization  of  American  political  parties. 
That  parties  should  have  become  highly  organized  is  the 
natural  outcome  of  the  circumstances  of  the  country. 
Among  the  contributory  causes  are  to  be  noted  in  the 
first  place  the  disjunction  of  executive  and  legislative 
power,  which  naturally  calls  for  a  bond  of  union  in  the 
shape  of  a  party  organization.^  To  this  we  must  add  the 
great  extent  of  territory  to  be  covered,  the  impossibiUty 
of  selecting  candidates  for  the  presidency,  or  for  the 
state  governorships,  secretaryships,  etc.,  in  any  purely 
spontaneous  fashion.  Nor  is  there  under  the  American 
system  any  set  of  persons  among  those  holding  power 
who  are  placed  in  the  same  position  of  evident  party 
leadership  as  has  always  been  the  case  with  the  party 
leaders  in  England.  The  attempt  of  the  members  of 
Congress  to  assume  this  position  and  to  nominate  candi- 
dates for  the  presidency  in  a  party  "caucus,"  soon  fell 
into  disrepute,  and  in  1824  broke  down  altogether.  The 
similar  attempt  of  the  state  legislatures  in  the  decade 
following  was  equally  ineffective.  In  place  of  this  there 
sprang  up  in  the  twenties,  in  accord  with  the  general 
American  idea  of  the  sovereignty  of  the  people,  the 
practice  of  holding  a  special  "convention"  or  meeting  of 
representatives  selected  by  the  members  of  a  poUtical 
party,  to  make  the  choice  of  its  candidates.  The  system 
thus  established  grew  apace.  As  long  as  the  great  slav- 
ery issue  was  before  the  nation,  the  convention  failed 
to  give  to  the  poUtical  parties  the  highly  mechanical 

*  See  in  this  conoectioa  F.  J.  Goodnow,  Politict  and  AdminUtration. 


336    THE  STRUCTURE  OF  THE  GOVERNMENT 

aspect  they  have  since  assumed.  But  from  the  close  of 
the  Civil  War  the  machinery  has  become  more  and 
more  definite,  until  it  has  reached  the  elaborate  form  in 
which  it  now  exists. 

The  sweeping  reforms  of  recent  years,  which  tend  to 
substitute  direct  votes  of  the  people  for  the  actions  of 
conventions,  have  greatly  altered  the  operation  of  the 
party  machine.  But  the  subject  may  be  best  under- 
stood by  considering  first  the  organization  as  it  was  be- 
fore the  era  of  reform. 

The  scheme  of  its  construction  was  as  follows.*  Its 
organization  followed  the  division  of  areas  made  for  the 
purposes  of  elections.  In  each  of  these  a  special  meeting 
of  party  adherents  was  held  for  the  selection  of  candi- 
dates. The  basis  of  it  was  found  in  what  was  known  as 
the  "primary,"  often  called  a  "caucus"  in  the  New 
England  States.  In  theory  this  consisted  of  a  meeting 
of  all  the  qualified  party  voters  resident  in  the  smallest 
voting  area  —  township,  county,  or  precinct,  as  the 
case  might  be.  In  actual  fact  it  was  only  a  minority  of 
the  voters  of  the  party  who  were  to  be  found  at  a  meet- 
ing of  the  primary.  Many  absented  themselves  from  in- 
difference, others  for  lack  of  the  technical  requirements 
for  admission.  Others  properly  qualified  were  excluded 
by  unfair  means.  This  was  particularly  true  of  primaries 
held  in  urban  areas,  where  the  voters  had  but  Uttle  in- 
dividual acquaintance  with  one  another.  The  duty  of  a 
primary  meeting  was  threefold.  It  appointed  the  stand- 
ing committee  of  the  party  for  that  area,  it  nominated 

*  Lord  Bryce's  admirable  description  of  party  machinery  in  the 
United  States,  American  Commontoealth,  vol.  n,  part  in,  has  never 
been  stirpassed.  For  more  recent  information  see  W.  B.  Mxmro,  The 
Government  of  the  United  States  (1919),  chaps,  xxn  and  xxin;  also 
Everett  Kimball,  The  National  Government  of  the  United  States  (1920). 
chaps.  V,  Ti,  and  vu. 


PARTY  GOVERNMENT  837 

party  candidates  for  the  elections  held  in  its  district, 
and,  most  important  of  all,  it  sent  up  delegates  to  the 
party  meetings  held  in  the  area  of  which  its  own  formed 
a  subdivision.  In  these  larger  areas,  such  as  a  congres- 
sional district,  or  state  assembly  district,  or  state  senate 
district,  it  was  impossible  for  all  the  voters  to  be  gath- 
ered together.  In  them,  therefore,  the  party  meeting 
took  the  form  of  a  "convention,"  composed  of  delegates 
sent  from  the  primary  meeting.  The  functions  of  such  a 
convention  were  similar  to  those  of  the  primary  itself. 
It  appointed  a  committee,  it  made  nominations  for  office 
in  the  district,  and  in  the  case  of  some  areas  it  sent  up 
delegates  to  the  state  convention.  The  state  convention 
similarly  nominated  candidates  for  the  governorship, 
etc.,  appointed  the  state  party  committee,  and  sent 
delegates  to  the  national  convention  held  once  in  four 
years.  ^  This  national  convention  stood,  as  it  still  stands 
at  the  apex  of  the  system.  It  was  held  for  the  selec- 
tion of  the  party  candidates  for  the  presidency  of  the 
United  States.  It  consisted  of  twice  as  many  members 
as  there  were  members  of  Congress,  two  delegates  being 
sent  from  every  congressional  district,  and  four  from 
each  State  at  large;  these  together  with  six  representa- 
tives from  each  territory  made  the  full  complement  of  a 
national  convention.  A  duplicate  set  of  members  known 
as  "alternates,"  or  substitutes  in  case  of  accident,  were 
also  appointed.  The  convention  thus  constituted  drew 
up  the  national  platform  of  the  party,  and  made  its 
nominations  for  the  presidency.  The  nomination  was 
made  by  ballot;  in  the  Republican  Party  a  simple  major- 
ity sufficed,  in  the  Democratic  a  majority  of  two  thirds 

'  Delegates  were  sent  to  the  national  convention  from  the  state  con- 
ventions, or  from  the  congressional  district  conventions.  In  any  case 
the  four  delegates  corresponding  to  the  representation  of  the  State  in 
the  Senate  were  sent  from  the  state  convention. 


338    THE  STRUCTURE  OF  THE  GOVERNMENT 

was  needed.  In  the  Republican  Party  the  members  of 
the  delegation  sent  from  a  State  might  vote  individually 
for  different  persons;  in  the  Democratic  Party  they 
must  vote  as  a  unit  for  the  same  person.  The  Demo- 
cratic Convention  of  1912  abrogated  the  unit  rule 
except  where  demanded  by  state  law. 

The  system  as  thus  planned  was  beautiful  in  the 
symmetry  of  its  organization.  It  seemed  to  offer  a  thor- 
oughly just  method  of  selecting  party  candidates,  and 
one  in  which  all  were  equally  entitled  to  participate. 
But  unfortunately  in  practice  it  opened  the  way  to  the 
gravest  political  abuses.  In  the  first  place  it  made  a 
considerable  demand  upon  the  time  and  energies  of  the 
voters,  a  demand  rendered  all  the  greater  by  the  multi- 
phcity  of  American  elections.  There  was  a  natural  temp- 
tation for  the  voter  to  stay  away  from  the  primary,  and 
to  content  himself  with  whatsoever  candidates  it  might 
select.  The  conduct  of  the  primary,  and  as  a  conse- 
quence of  the  superior  conventions  to  which  it  was  con- 
tributory, thus  fell  imder  the  control  of  the  professional 
"politicians"  and  their  hangers-on.  Hence  arose  the 
familiar  phenomenon  of  the  party  "ring"  and  the  party 
"boss,"  for  whom  the  elaborate  system  of  party  ma- 
chinery served  as  a  ready-made  instrument  of  political 
control.  The  more  the  primary  fell  imder  the  control  of 
an  inside  ring,  the  more  were  the  ordinary  citizens 
tempted  to  stay  away  from  it,  deploring  its  vices,  yet 
unable  single-handed  to  combat  them.  In  the  city  pri- 
maries the  number  of  those  entitled  to  vote,  who  actu- 
ally did  vote,  was  seldom  more  than  one  third,  and  often 
dropped  to  the  merest  fraction.  Even  the  number  of 
those  entitled  to  vote  in  the  primaries  was  often  only  a 
small  part  of  the  voters  of  the  party.  For  as  long  as  the 
primaries  remained  self-constituted  bodies,  it  was  possi- 


PARTY  GOVERNMENT  339 

ble  for  them  to  adopt  exclusive  rules  of  admission  which 
shut  out  all  but  the  favored  few.  The  persons  who  were 
entitled  to  vote  in  a  primary,  and  actually  did  vote,  be- 
came only  a  fraction  of  a  fraction.  Indeed  the  whole  of 
the  elaborate  party  machinery  that  we  have  described 
came  to  be  operated  not  from  its  own  spontaneous  force, 
but  at  the  bidding  of  the  clique  of  inside  politicians,  who 
"worked  the  machine."  Instead  of  the  real  selection  by 
a  party  convention,  there  was  the  adoption  by  the  con- 
vention of  a  "slate,"  or  list  of  names  already  prepared 
for  them.  The  worst  feature  of  all  was  the  class  of  men 
thus  brought  into  American  poUtics,  and  the  point  of 
view  they  brought  with  them.  The  nature  of  the  party 
machine  lent  itself  to  repel  the  honest  and  to  attract  the 
unscrupulous.  Relatively  few  men  had  sufficient  pub^ 
lie  spirit  to  consent  from  purely  patriotic  motives  to 
seek  office  by  such  obnoxious  means.  The  opportunity 
was  thus  opened  to  second-rate,  shifty,  and  self-seeking 
aspirants,  to  whom  the  whole  party  machinery  merely 
offered  a  method  of  gaining  an  easy  livelihood,  embel- 
lished with  a  tawdry  conspicuousness.  Too  much  stress 
must  not,  however,  be  laid  on  the  sinister  side  of  Amer- 
ican party  life.  It  is  not  true,  as  a  foreign  observer 
might  be  incUned  to  think,  that  the  American  people  as 
a  nation  were  corrupted  by  it.  In  moments  of  stress  or 
in  the  presence  of  a  great  national  crisis,  the  artificial 
barriers  set  up  by  such  a  system  were  easily  pushed 
aside,  and  the  right  men  shouldered  their  way  to  the 
front  of  public  Ufe.  But  in  the  ease  of  quiet  times,  and 
in  the  absorbing  prosperity  of  a  great  industrial  civiliza- 
tion, the  machine  fell  back  again  into  the  hands  of  those 
who  made  it  their  business  to  run  it. 

5.  Reform  of  the  system.  The  question  of  finding  a 
remedy  for  the  evils  of  a  party  machine  has  long  been 


340    THE  STRUCTURE  OF  THE  GOVERNMENT 

discussed.  The  only  real  and  permanent  cure  would  be 
found  in  rousing  the  ordinary  voter  from  his  habitual 
indifference  and  absorption,  and  bringing  him  to  take  an 
active  interest  in  the  exercise  of  his  full  pohtical  rights. 
This,  however,  is  a  matter  quite  beyond  legislative  con- 
trol, and  can  only  come  with  the  growth  of  vigorous  pub- 
lic sentiment  in  regard  to  the  duties  of  a  citizen,  stimu- 
lated by  the  object-lessons  afforded  by  rampant  corrup- 
tion. It  may  in  any  case  be  doubted  whether,  with  the 
present  system  of  short  terms  of  office  and  numerous 
elections,  such  an  active  public  life  of  the  citizens  at 
large  could  be  gained  without  serious  detriment  to  their 
other  social  activities.  It  would  be  easier  to  reform  the 
operation  of  American  parties  if  the  attempt  were  ac- 
companied by  the  lengthening  of  elective  tenure  of 
oflBce.  Why,  for  example,  should  an  elective  ofl&cer  hold 
office,  as  do  a  vast  number  in  the  United  States,  for  one 
year  only?  Or  a  member  of  a  legislature,  as  is  custom- 
ary, for  two  years  only?  There  is  nothing  pecuUarly 
democratic  about  the  space  of  twelve  months;  if  change 
is  a  good  thing  in  itself,  why  not  hold  a  new  election 
every  month?  With  fewer  elections  the  ordinary  voter 
would  be  able  to  concern  himself  more  directly  with 
those  there  were,  and  the  practical  exclusion  of  the 
majority  from  political  control  would  no  longer  be  pos- 
sible. But  since  the  opening  of  the  present  century  vig- 
orous efforts  have  been  made  to  reform  the  evils  that 
had  been  developed  by  party  organization. 

The  first  method  of  reform  to  be  widely  adopted  was 
the  plan  of  making  the  primary  meeting  of  a  political 
party  a  legally  organized  body  instead  of  a  self-consti- 
tuted group.  This  is  the  intention  of  the  so-called  "pri- 
mary election  laws"  which  have  been  enacted  within 
the  last  two  or  three  decades  in  most  of  the  leading 


PARTY  GOVERNMENT  341 

States.  These  laws  provide  that  due  public  notice  shall 
be  given  of  the  time  and  place  of  primary  elections;  that 
the  elections  shall  be  by  ballot,  and  that  the  expense 
shall  be  paid  by  the  State.  The  laws  are  usually  com- 
pulsory in  cities  and  optional  in  rural  districts.  The 
above  provisions  still  leave  the  question  of  admission  to 
the  primary  to  be  regulated  by  the  party  itself.  But  in 
some  States  the  law  goes  farther,  and  defines  the  quaUfi- 
cation  required  for  admission  to  the  primary.  There  is 
no  uniformity  in  the  state  laws  in  regard  to  admission 
to  vote  at  a  primary,  but  two  leading  systems  may  be 
distinguished.  Some  States  hold  "open  primaries"  at 
which  the  voter,  by  the  use  of  the  secret  ballot,  may 
cast  his  vote  as  he  pleases  without  declaring  to  which 
party  he  belongs.  In  these  cases  the  law  has  to  be  framed 
to  prevent  the  voter  from  voting  for  more  than  one 
party.  In  other  States  "closed  primaries"  are  estab- 
lished. Admission  to  vote  in  a  closed  primary  impUes 
some  test  of  party  allegiance,  such  as  the  declaration  of 
allegiance  exacted  in  California  and  Minnesota,  or  the 
pledge  of  support  to  the  candidate  selected  required 
under  the  law  of  Louisiana  and  Texas.  In  other  States 
the  authorities  of  the  party  itself  are  allowed  by  law  to 
prescribe  the  test  of  membership. 

Thus  far  we  have  spoken  of  the  primary  only  as  an 
instrument  for  the  selection  of  party  candidates  for  the 
local  area  and  party  delegates  for  the  superior  con- 
ventions. But  the  reform  of  the  primary  system  has 
brought  not  only  the  "legalization"  of  primary  voting 
as  described  above,  but  a  further  change  in  the  function 
cf  the  primary  itself.  This  new  feature  is  embodied  in 
what  is  called  the  direct  primary  or  direct  nomination. 
The  general  aim  of  the  plan  is  to  eliminate  the  conven- 
tion altogether  and  cause  all  recognized  party  candidates 


342    THE  STRUCTURE  OF  THE  GOVERNMENT 

to  be  selected  by  a  vote  of  the  people  gathered  in  the 
primary  groups.  Under  this  method  prospective  candi- 
dates for  ofl&ce  may  announce  their  names  to  the  public 
in  any  way  which  they  see  fit  to  use  or  their  names  may 
be  unofficially  placed  before  the  public  by  any  group  of 
supporters.  Hence  the  names  of  any  number  of  aspir- 
ants for  the  position  of  candidate  of  a  recognized  party 
may  be  unofficially  announced.  When  the  direct  pri- 
mary, or  direct  nomination,  is  held,  each  citizen  votes 
for  one  of  these  names,  or  for  any  other  name  which  he 
writes  in  on  his  ballot,  as  his  choice  for  the  candidate  of 
one  or  other  pohtical  party.  The  persons  receiving  the 
highest  number  of  votes  in  each  party  become  the  recog- 
nized candidates  and,  presumably,  the  supporters  of  the 
beaten  nominees  will  transfer  their  votes  to  them  on  the 
day  of  election.  In  this  way  the  primary  meetings  can 
nominate  candidates  for  various  state  offices  without 
an  intermediary  convention.  They  can  nominate  candi- 
dates for  United  States  senatorships  on  whose  names 
the  voters  of  the  two  or  more  parties  will  vote.  Finally 
they  can,  and  they  do,  indicate  their  preference  for  this 
or  that  aspirant  for  the  position  of  party  candidate  in 
the  presidential  election. 

The  system  of  direct  nomination  has  made  enormous 
progress.  Its  highest  apphcation  is  now  found  in  the 
presidential  elections  where  the  voters  in  the  primaries 
are  called  upon  not  only  to  elect  the  members  of  the 
national  convention,  but  also  to  register  their  "prefer- 
ence" for  a  particular  presidential  candidate.  The  sys- 
tem has  called  forth  unlimited  enthusiasm  and  become 
the  subject  of  extreme  laudation.  Its  advocates  see  in  it 
the  end  of  machine  poUtics,  of  ready-made  conventions, 
and  of  the  rule  of  a  self -chosen  cHque  of  bosses  and  party 
managers.  It  is  more  than  possible,  however,  that  the 


PARTY  GOVERNMENT  340 

advantages  of  direct  nomination  are  somewhat  over- 
rated. After  all,  the  organization  and  the  machinery  set 
on  foot  by  the  political  managers  can  move  one  stage 
back,  and,  in  the  indifiference  of  the  general  voter, 
preface  the  direct  nomination  itself  by  a  preliminary 
and  machine-made  choice.  Unless  direct  nomination 
can  bring  with  it  a  more  active  public  spirit  and  more 
general  participation  in  civic  concerns,  it  will  go  the  way 
of  the  machinery  which  it  displaces.  Here  as  elsewhere 
the  forms  of  government  are  of  no  avail  without  the 
spirit.  Moreover,  serious  critics  of  direct  nomination 
are  already  calling  attention  to  the  fact  that  it  tends  to 
shut  out  dehberation  and  the  opportunity  for  collective 
discussion  afforded,  ideally  at  least,  by  a  party  conven- 
tion. 

6.  Party  machinery  in  Great  Britain.  In  the  United 
Kingdom  party  machinery  is  not  found  in  the  same 
highly  organized  state  as  in  the  United  States.  This 
has  been  due  to  the  fact  that  it  is  not  so  necessary.  The 
cabinet  system,  as  has  been  seen,  puts  executive  and 
legislative  power  into  the  same  hands.  In  America  the 
party  organization  forms  the  connection  by  which  the 
two  legally  distinct  branches  of  the  government  are 
brought  into  harmony.  This  function,  therefore,  is  not 
needed  in  England.  Add  to  this  the  fact  that  the 
English  parUamentary  elections  are  much  less  numer- 
ous than  the  various  elections  for  federal  and  state 
offices  in  the  United  States.  Nevertheless  the  use  of 
regular  party  machinery  is  growing  in  Great  Britain; 
though  long  regarded  by  many  English  people  with  dis- 
favor as  an  American  importation,  its  obvious  utility 
for  election  purposes  has  insured  its  adoption.^    At 

*  Few  works  on  British  government  contain  any  reference  to  party 
organization.   President  Lowell's  masterful  work,  The  Government  of 


344    THE  STRUCTURE  OF  THE  GOVERNMENT 

the  center  of  English  party  structure  stand  two  great 
political  organizations  —  the  National  Conservative 
Union  and  the  National  Liberal  Federation  —  whose 
headquarters  are  in  London.  Of  these  bodies  affilia- 
tions are  formed  in  each  polling  district  of  a  parlia- 
mentary constituency,  made  up  of  the  active  adherents 
of  the  party  in  that  area.  This  is  the  germ  ceU  of  party 
structure,  corresponding  to  the  American  primary.  It 
elects  representatives  to  a  party  council  of  the  whole 
constituency,  and  from  these  constituency  councils  rep- 
resentatives are  sent  to  form  a  council  for  the  whole 
county  or  borough.  Finally  this  last  council  elects 
representatives  to  the  central  body  at  London.  The 
party  leaders  in  Parliament  naturally  exercise  a  con- 
trolling influence,  somewhat  as  the  congressional  cau- 
cus of  the  early  nineteenth  century  aspired  to  do.  The 
caucus  broke  down  because  under  the  American  fed- 
eral system  the  national  congress  is  not  the  sole  and  su- 
preme organ  of  national  political  hfe.  But  the  different 
situation  in  which  the  British  Parliament  is  placed 
tiatiuully  puts  the  party  leaders  in  a  position  to  exer- 
cise a  radiating  control  over  all  the  constituencies. 
The  aflSUated  branches  of  the  organizations  mentioned 
act  as  the  means  of  giving  definite  direction  to  this 
control.  With  the  gradual  evolution  of  the  "party 
convention"  the  system  of  party  "platforms"  is  begin- 
ning to  appear.  Authoritative  "open  letters"  or  ad- 
dresses of  the  great  party  leaders  and  resolutions  passed 
by  the  councils,  constituencies,  etc.,  are  of  this  charac- 
ter. Candidates  are  still  selected  in  somewhat  irregular 
and  varying  fashion,  accentuated  by  the  fact  that  resi- 

Enaland  (1908),  contains  an  admirable  discussion  of  the  topic,  part  ii. 
See  also  Ostrogorski,  Democracy  and  the  Organization  of  Political  Par- 
ties,  and  Mr.  Winston  Churchill,  Lord  Randolph  ChurchiU,  especially 
ohap.  vu. 


PARTY  GOVERNMENT  345 

dence  in  the  constituencies  is  not  needed  as  a  qualifi- 
cation. The  custom  of  reelecting  the  same  person  again 
and  again  obviates  the  necessity  of  making  a  selection. 
If  a  new  choice  must  be  made,  it  is  done  either  by  the 
constituency  council,  or  if  they  cannot  agree,  the  central 
council  at  their  suggestion  proposes  a  Ukely  candidate 
to  them,  or  even  indicates  two  or  three  from  whom  they 
may  select. 

7,  The  party  groups  of  Continental  Europe.  On  the 
continent  of  Europe  party  governance  presents  certain 
features  differing  markedly  from  the  situation  hitherto 
existing  in  America  and  Great  Britain.  Instead  of  two 
great  political  parties  overshadowing  all  others,  and 
alternating  in  the  control  of  the  government,  we  find 
in  France,  Germany,  and  Italy  a  considerable  number 
of  party  groups,  no  one  of  which  is  strong  enough 
to  outnumber  all  the  others.  In  France  and  Italy, 
this  is  a  particularly  disturbing  element  in  public  life, 
since  the  administration  of  those  countries  is  based  on 
the  cabinet  system,  rendering  the  executive  government 
dependent  on  the  continued  support  of  a  majority  in 
the  lower  house  of  the  legislature.  Under  the  group 
system  of  party  life,  no  one  party  is  able  to  afford  that 
support.  It  must,  therefore,  be  obtained  by  means  of 
a  coalition  of  separate  parties  whose  mutual  support  is 
given  purely  for  reasons  of  expediency,  and  may  be 
withdrawn  at  any  time  in  favor  of  a  more  profitable 
combination.  It  is  to  this  fact  that  is  due  the  notorious 
instabiUty  of  French  ministries  under  the  Third  Repub- 
lic. There  exist  in  France  four  chief  party  groups, 
with  many  subdivisions  and  combinations.  The  chief 
lines  of  political  cleavage  are  marked  out  by  the  terms, 
Conservative,  Republican,  Radical,  and  Socialist. 
The  Conservatives  include  the  remnants  of  the  older 


346    THE  STRUCTURE  OF  THE  GOVERNMENT 

monarchical  parties,  once  divided  into  Imperialists,  Or- 
leanists,  and  Legitimists,  but  now  representing  rather 
the  opposition  to  advanced  democracy  than  the  hope  of 
a  monarchical  revolution.  The  recently  formed  group 
of  NationaUsts  is  a  reconstruction  of  conservative  ele- 
ments. The  Republicans  have  stood  first  and  foremost 
for  the  maintenance  of  the  Third  RepubUc  as  estab- 
lished, without  aiming  at  the  advanced  social  reforms  de- 
manded by  the  Radicals.  The  Socialists  differ  from  the 
latter  in  wishing  to  break  entirely  with  individualism 
and  found  a  cooperative  commonwealth.  French  Social- 
ists have  been  much  divided  both  as  adherents  of  rival 
leaders  and  as  exponents  of  rival  doctrines  —  munici- 
palism  versus  the  central  state,  opportunism  versus  no- 
compromise,  etc.  No  one  of  these  parties  has  ever  been 
strong  enough  to  maintain  a  ministry  by  its  support. 
Hence  all  the  ministries  (but  one),  from  the  beginning 
of  the  true  republican  era  under  President  Gr^vy  until 
1905,  were  formed  with  Republicans  as  the  nucleus 
and  with  fortuitous  support.  The  Bourgeois  ministry 
(1895-96)  was  chiefly  Radical  and  the  ministries  from 
1905  till  the  period  of  the  Great  War  were  based  on  a 
combination  of  Radicals  and  Socialists.  The  government 
of  France  during  the  war  period  naturally  represented 
a  general  union  of  patriotic  elements.  The  instabihty, 
which  during  the  greater  part  of  its  existence  has  char- 
acterized the  ministries  of  the  Third  Republic,  has  been 
aggravated  by  the  methods  of  French  legislative  proced- 
ure, it  being  customary  for  the  cabinet  to  resign  even  if 
defeated  on  matters  of  minor  moment,  or  in  consequence 
of  an  "interpellation"^  in  the  Chamber  of  Deputies. 

>  The  "interpellation"  differs  from  the  "questions"  raised  in  the 
British  Parliament  in  that  a  debate  on  the  point  raised  is  allowed  after 
the  interpellation,  but  not  after  a  question. 


PARTY  GOVERNMENT  347 

Even  the  members  of  the  cabinet  itself  are  less  inter- 
ested in  its  continuance  than  is  the  case  in  England, 
since  they  may  very  possibly  themselves  form  part  of 
the  reconstructed  cabinet  which  supplants  it.  The  re- 
lation of  pohtical  parties  to  cabinet  government  thus 
stands  upon  quite  a  different  footing  in  France  from 
what  it  does  in  the  United  Kingdom.  Indeed  the  com- 
mendation which  it  has  so  largely  met  in  the  latter 
country  rests  on  the  presumption  of  the  existence  of  two 
great  parties  as  a  sort  of  natural  phenomenon  likely  to 
continue.  The  absence  of  such  in  France  upsets  the 
whole  calculation.  In  the  former  German  Empire,  there 
was  the  same  subdivision  of  party  groups.  The  elections 
to  the  German  Reichstag  before  the  Great  War  showed 
at  least  a  dozen  different  parties.  The  Reichstag  con- 
tained 397  members,  but  even  the  most  numerous  of 
the  parties,  the  SociaUsts,  had  only  a  hundred  and  ten 
seats.  Several  of  the  parties  (anti-Semitics,  Guelphs, 
etc.)  had  less  than  a  dozen.  The  subdivision  of  parties 
was,  however,  of  much  less  national  consequence  in 
Germany  than  in  France,  since  parliamentary  govern- 
ment did  not  exist. 

Looking  at  the  institution  of  party  government  gen- 
erally, it  seems  Uable  to  one  or  the  other  of  two  grave 
dangers.  If  bisection  of  opinion  on  a  paramount  issue 
does  not  exist,  then  the  consolidation  of  the  party  may 
become  a  purely  mechanical  affair.  What  was  in  its 
origin  a  natural  bond  of  union  may  degenerate  into 
the  cohesion  created  by  artificial  party  ties.  On  the 
other  hand,  where  such  cohesion,  natural  or  artificial, 
is  not  forthcoming,  parties  assume  the  fragmentary  and 
unmanageable  form  seen  on  the  continent  of  Europe.  In 
Great  Britain,  where  the  operation  of  the  constitution 
in  its  present  shape  is  dependent  on  party  government, 


348    THE  STRUCTURE  OF  THE  GOVERNMENT 

the  situation  of  public  affairs  in  the  opening  decades  of 
this  century  is  at  a  very  interesting  juncture.  The  older 
line  of  cleavage  has  been  intersected  in  all  directions 
with  new  divisions.  The  adoption  of  the  Home  Rule 
Policy  by  Mr.  Gladstone  (1886)  divided  the  Liberals 
into  Unionists  and  Home-Rulers.  The  adhesion  of 
the  former  to  the  Conservatives  partially  healed  the 
breach  thus  created.  But  with  the  close  of  the  century 
the  division  into  Imperialists  and  anti-ImperiaUsts, 
Protectionists  and  Free-Traders,  and  other  minor  rifts 
of  opinion  violently  disturbed  the  formation  of  parties. 
The  emergence  of  the  parliamentary  Labor  Party  as 
a  powerful  factor  in  the  twentieth  century  further  dis- 
turbed the  situation.  The  older  Liberal  Party  had  de- 
veloped before  the  war  a  radical  wing  pledged  to  en- 
ergetic social  reform  and  the  limitation  of  the  power  of 
the  House  of  Lords.  This  section  by  its  partial  union 
with  the  Labor  groups  and  the  Home-Rulers  had  become 
dominant  in  England.  The  war  interrupted  its  activities 
and  led  to  the  formation  of  a  national  coalition  gov- 
ernment. Of  the  re-formation  of  the  poUtical  parties 
and  party  groups  which  will  take  place  during  the  com- 
ing period  of  reconstruction,  it  is  impossible  to  speak. 
It  remains  to  be  seen  whether  the  British  political  par- 
ties will  disintegrate  into  groups,  will  adopt  a  formal 
system  of  imion  with  pledges  and  platforms  on  the 
American  plan,  or  will  find  some  means  of  reverting  to 
their  earher  condition  of  "natural"  opposition  on  a  fun- 
damental question. 

READINGS  SUGGESTED 

Ostrogorski,  M.,  Democracy  and  the  Organization  of  Political 
Parties  (1908),  vol.  i,  chap,  viii,  and  vol.  n  (especially),  part 
u.  See  also  Lord  Bryce's  preface. 


PARTY  GOVERNMENT  349 

Sait,  E.  M.,  Government  and  Politics  of  France  (1920),  chap.  x. 
Godkin,  E.  L.,  Unforeseen  Tendencies  of  Democracy  (1898), 

essay  no.  3,  "The  Nominating  System." 
De  Tocqueville,  A.,  Democracy  in  America  (1835),  chap,  x 

("Parties  in  the  United  States"). 
Lowell,  A.  L.,  The  Government  of  England,  part  n,  chaps. 

XXIV  and  xxv. 

FURTHER  AUTHORITIES 

Woodburn,  J.  A.,  Political  Parties  and  Party  Problems  in  the 

United  States  (2d  ed.,  1914). 
Macy,  J.,  Political  PaHies  in  the  United  States,  1846-61  (1900). 
McKee,  T.  H.,  National  Convention  and  Platforms  (various 

editions). 
Lowell,  A.  L.,  Governments  and  Parties  in  CorUinental  Europe 

(revised  edition). 
Ford,  H.  J.,  Rise  and  Growth  of  American  Politics  (1898). 
Bryce,  J.,  American  CommonweaUh  (1889). 
Macdonagh,  M.,  The  Book  of  Parliament  (1897). 
Carr-Gomm,  F.  C,  Handbook  of  the  Administrations  of  Great 

Britain  (revised  edition,  1901). 
Lecky,  W.  E.  H.,  Democracy  and  Liberty  (1896). 
Maine,  Sir  H.,  Popular  Government  (1886). 
Goodnow,  F.  J.,  Politics  and  Administration  (1900). 
May,  Sir  T.  E.  (Baron  Farnborough),  Constitviional  History 

of  England,  vol.  n  (especially  chap.  viii). 
Ogg,  F.  A.,  The  Governments  of  Europe  (1913). 
Mallock,  W.  H.,  The  Limits  of  Pure  Democracy  (1918). 
De  Witt,  B.  P.,  The  Progressive  Movement  (1915). 
Blease,  W.  L.,  Short  History  of  English  Liberalism  (1913). 
Curtis,  F.,  The  Republican  Party,  1864-1904  (1904). 


PART  m 
THE  PROVINCE  OF  GOVERNMENT 


CHAPTER  I 
INDIYIDUALISM 

1.  The  individualifltic  theory  of  the  functions  of  government  —  2. 
Individualism  as  based  on  a  theory  of  justice  —  3.  Based  on  a 
theory  of  profitability:  the  doctrine  of  laiasez-faire  —  4.  Based  on 
a  biological  analogy:  the  survival  of  the  fittest  —  6.  Conflicting 
forces. 

I.  The  individualistic  theory  of  the  functions  of 
government.  In  the  first  and  second  divisions  of  the 
present  volume  we  have  considered  the  general  nature 
of  the  state,  and  the  constitution  and  structure  of  gov- 
ernmental bodies.  The  discussion  of  the  form  of  gov- 
ernment has  of  necessity  preceded  the  treatment  of  the 
proper  sphere  of  its  operation.  Yet  in  our  own  time  the 
latter  topic  in  practice  assumes  the  place  of  para- 
moimt  importance.  The  general  opinion  of  civihzed 
countries  recognizes  the  vaUdity  of  the  principles  of 
popular  sovereignty  and  democratic  government  — 
whether  expressed  by  means  of  a  Umited  monarchy  or 
in  a  repubhcan  form.^  It  is  generally  admitted  also  that 
the  adoption  of  popular  government  does  not,  in  and 
of  itself,  as  the  sanguine  theorists  of  a  hundred  years 
ago  hoped  it  might,  offer  a  solution  of  all  our  poUtical 
and  economic  problems.  Even  granting  that  the  gov- 
ernment is  to  be  controlled  by  the  people  and  for  the 

>  In  stating  that  the  general  consensus  of  opinion  is  in  favor  of 
democracy,  it  is  not  to  be  denied  that  popular  government  has  found 
occasional  detractors  among  writers  of  reputation  and  ability.  Sir 
Henry  Maine  (Popular  Government,  1886)  declares  it  to  be  "extremely 
fragile,"  "not  in  harmony  with  the  normal  forces  ruling  human  na- 
ture," and  "apt  therefore  to  lead  to  cruel  disappointment  or  serious 
disaster."  Compare  also  W.  H.  Mallock,  T?ie  Limita  of  Pure  Democ- 
racy (1918). 


354         THE  PROVINCE  OF  GOVERNMENT 

people,  we  have  yet  to  ask  what  is  to  be  the  proper 
sphere  of  its  operation  for  the  general  benefit.  We 
employ  in  ordinary  discourse  a  variety  of  phrases  to  in- 
dicate the  subject  in  question,  speaking  indifferently  of 
the  sphere  of  the  state,  state  control,  the  functions  of 
government,  the  province  of  government,  etc.  More  spe- 
cial aspects  of  the  problem  are  seen  in  connection  with 
government  ownership  of  railways,  the  control  of  trusts, 
and  the  management  of  public  utihties.  But  whether 
in  its  general  theoretical  aspect  or  in  particular  form, 
the  problem  involved  is  emphatically  the  paramount 
question  of  the  opening  of  the  twentieth  century. 
In  the  following  three  chapters  we  shall  endeavor  to 
deal  with  it  in  systematic  fonn,  considering  one  after 
another  the  solutions  that  have  been  offered  in  theory 
and  practice  to  the  open  question  of  government  con- 
trol. First  we  shall  deal  with  the  individualistic  solu- 
tion, or  system  of  natural  liberty,  to  which  we  have 
already  referred  in  a  somewhat  different  connection  in 
a  preceding  chapter.  In  the  second  place  we  shall  dis- 
cuss the  ideals  of  collectivism,  and  the  attempts  that 
have  been  made  for  its  partial  realization.  The  discus- 
sion of  the  actual  economic  operations  of  modem 
states  on  what  may  be  called  an  individualistic  basis, 
modified  to  a  great  extent  by  utilitarian  and  opportun- 
istic considerations,  will  be  considered  in  conclusion. 

To  the  treatment  of  the  individualistic  doctrine  of 
the  functions  of  government  belongs  of  right  the  pre- 
cedence. For  it  constituted  during  a  large  part  of  mod- 
em times  what  might  be  called  the  official  creed  of 
enlightened  governments;  was,  until  our  own  genera- 
tion, defended  by  the  greatest  theorists  of  the  modem 
era,  and  although  discredited  in  its  extreme  form,  re- 
mains as  the  working  basis  of  the  economic  operation 


TABLE  OF 


Nameof  Upper 
Uouie 


Uhitbo  Statxs, 


Senate 


Thb  Umttbd 

KiMODOM 


S'ame  of  Lower  ■  ^  "^ 

Home        I^S  $ 


House  of  Rep-      % 
reaentatives 


HonM  of  Lordsi  House  of  Com-    677 
mona  (1920) 


iSenate 


Cai(aoa 


AimTKAlIA 


Franci 


Obbman 
Empub 

{as  in  1914) 


PBU88U 

{at  in  1914) 


Spaih 


Austria  ' 
{at  in  1914) 


HuxaABT 
{at  in  1914) 


ITA1.T 


SwrrZEBLAKD 


Senate 


Senate 


Bundesrath 


Herrenhaus 


Senate 


Herrenhaus 


Pfirendihiz 
(House  of 
Magnates) 


Senate 


StXnderatb 


House  of  Com- 
mons 


House  of  Rep- 
resentatives 


Chamber  of 
Deputies 


Reichstag 


Abgeordneten- 
haus 


Cong^rees 


Abgeordneten- 
haus 


96 


36 


300 


Term  of  I  'pi>fr    Term  of  Lower 
Ham*'  Uou*e 


436    lEach    senstor    C  ■>  yean 
(1920)  I  years ;  one  third 
renewed  every  2| 
years 


707 


76 


584 
(1919) 


01 
votes 


About 
330 

ries) 


360 


K^pviselfih^ 
(House  of 
Deputies) 


Chamber  of 
Deputies 


Nationalratb 


About 
270 
(va- 

ties) 


368 
(1911) 


390 
(1920) 


44 


397 


Life,  except  Ti    years    unless 

Peers  reprfuciit-  Parliament    pre- 
ing  ScotliuKl         viouuly  dissolved 


Life 


6  yean 


5    years     uulesa 
1  sooner  dissolved 


3    years    unless 
sooner  dissolved 


9  years.    One       4    years     unless 
third  of  thf  sen-  sooner  dissolved 
ators  retire  i-%ery ; 
3  years  I 


433 


406 


616 


463 


SOS 


167 


Atthediaciftion  r>    years     unless 
of  the  coii!<titu-;80oner  dissolved 
ent  parts  of  the 
Impure 


Life 


Life 


Life  tenure 


( 'leriiit 
tenta( 


archills 
ops 
'J4  big)io| 


>    years     unless  Reprr-sei 
soouer  dissolved   lives  of 
cliapters 


6    years    unless 
sooner  dissolved 


li    years     unless!  18 

Hoouer  dissolved 


Life  tennre  ex-'5  years  unless 
cept  ec  '#cio'sooner  dissolved 
members 


LUa 


5    years     unless 
Hooner  dissolved 


At  the  disrretion  3  years 
of  the  ewistitu-l 
ent  canton  t  I 


1  By  the  l<iw  of  1«7«  (sinBe  repealed)  levpnty-flve  of  the  Hnaton  were  to  b*  si    '"ntoil  for  life  by  the  two  rh.mi.. 
»  Anstria-llanesry  had.  for  purpose*  of  political  union,  two  legiatative  bodin    nllrd  the  I>elegat)on>,onr  conninti 
separately,  but  tor  the  purpose  of  forcing  an  agreement  they  met  together  fort  -•  mral  vote. 


1 

GISLATURES  (1921) 

ompositUm  of  Upper  Bouse 

IJerettUary 

Repre- 
sentatives 

0 

Appointed 

Elected 

ComtUulional  Relation  o/l/ie  Two  Howe* 

0 

96 

"  All  bills  for  raising  revenue  shall  originate  in  the  House  of  Representatives; 
but  the  Senate  may  propose  or  concur  with  amendments  as  on  other  bills."  Con- 
stitution, art.  i,  §  7. 

f>58 

6   Lords    of 
Appeal 

28  from 
Peers  of 
Ireland  ;  10 
from  Peers 
of  Scotland 

Regulated  by  Parliament  Act,  1911  (1  and  2  Oeo.  V,  ch.  13).  The  Lords  liave 
no  power  over  bills  certified  by  the  Sptaker  of  the  Hou«e  of  Commons  to  be 
money  bills.  Other  bills,  except  those  extending  the  duration  of  Parliament, 
become  law  without  the  assent  of  the  Lords  if  passed  by  tlie  House  of  Commons 
in  three  successive  sessions,  two  years  having  elapsed  between  the  second  read- 
ing of  the  bill  in  the  first  session  and  tlie  third  reading  in  the  third  session.  See 
above,  pp.  170  el  seq. 

0 

96 

0 

"  Bills  for  appropriating  any  part  of  the  public  revenue  or  for  imposing  any  tax 
on  imports  shall  originate  in  the  House  of  Commons."  British  North  America 
Act,  18(i7,  §  53. 

0 

0 

36 
300 

"  Proiiosed  laws  appropriating  revenue  or  moneys  or  imposing  taxation  shall  not 
originate  in  the  Senate.  The  Senate  may  not  amend  proposed  laws  imposing 
taxation  or  proposed  laws  appropriating  revenue  or  moneys  for  the  ordinary 
annual  services  of  the  government."  Commonwealth  of  Australia,  Constitution 
Act,  1900,  §  53. 

0 

0» 

"  Finance  bills  must  first  be  presented  to  the  Chamber  of  Deputies  and  voted  by 
them."    Loi  Constitutiounelle,  24  Feb.,  1875,  §  8. 

0 

61 

0 

CoiJrdirate  powers.  "  Imperial  legislation  is  effected  by  the  Bundesrath  and  the 
Reichstag.  The  consent  of  the  majority  vote  of  both  houses  is  necessary  and  is 
adequate  for  an  imperial  law."    Constitution,  act  5. 

!  1 

The   princes 
of  the  royal 
houae,  heads 
of  16  media- 
tized prince- 
ly     houses, 
and  about  50 
of  the  Prus- 
sian  territo- 
rial nobility 

Life    peers 
(indefinite) 
named  by  tlie 
King,  repre- 
sentatives of 
universities, 
mayors  of  ci- 
ties of  popu- 
lation    over 
50,000 

8  elected  by 
Landowners 
from  tlie 
Provincial 
Nobility 

"  Finance  bills  shall  be  submitted  first  to  the  Chamber  of  Deputies ;  they  shall 
be  accepted  or  refused  in  their  entirety  by  the  House  of  Lords."  Constitution, 
1850,  V.  §  62. 

80 
maximum 

100 

180 

"  Laws  in  reference  to  the  taxes  and  the  public  credit  m)i8t  be  first  presented  to 
the  Congress."    Constitution,  1876,  §  42. 

81) 

Minimum 
1.50 ;     maxi- 
mum 170 

0 

"The  consent  of  both  houses  and  the  consent  of  the  emperor  is  necessary  for 
every  law.  If  in  a  finance  law  in  regard  to  {mrticular  items,  or  in  a  law  for 
raising  recruits  in  regard  to  the  number  of  the  contingent  to  be  raised,  in  de- 
spite of  repeated  consideration  no  agreement  can  be  reached  by  the  two  houses, 
then  the  lower  sum  proposed  shall  be  considered  as  adopted."  Fundamental 
Law  of  21  Dec,  1807,  §  13. 

16  archdukes 
23C  heredi- 
tary peers 

50 

3  delegates 
from  Croatia 
and  10  elect- 
ed    by     the 
Upper  House 

Codrdiuate.  —  Custom,  and  Law  of  1885,  §  13. 

t'l  princes 

384 

0 

"  Every  law  for  imposing  taxes  or  for  sanctioning  the  balances  or  accounts  of 
the  state  shall  be  presented  first  to  the  Chamber  of  Deputies."   Statuto,  art.  10. 

0 

44   (appoint- 
ed by  can- 
tons) 

0 

Coordinate  powers.  —  Constitutional  Art  89. 

"  Federal  laws  can  only  be  passed  with  the  consent  of  both  houses." 

>|  nicniberii  ch 

osen  by  the  Au 

strian  parlianic 

nt,  and  one  of  a  like  number  chosen  by  the  Hungarian  parliament.    They  lat  and  debated 

INDIVIDUALISM  355 

of  both  the  American  and  the'  British  governments. 
The  individualistic  theory  may  be  briefly  stated  in  the 
proposition  that  the  sole  duty  of  government  is  to 
protect  the  individual  from  violence  or  fraud.  Accord- 
ing to  this  theory  the  positive  interference  of  the  state 
with  the  individual  even  in  his  own  interest  is  not  justi- 
fied. Nor  is  the  state  justified  in  undertaking  opera- 
tions of  an  economic  character,  or  in  imposing  restric- 
tions (other  than  in  prevention  of  violence  or  fraud)  on 
the  economic  activities  of  its  citizens.  A  schedule  of 
government  functions  admissible  on  a  purely  individ- 
ualistic plan  would  include  the  maintenance  of  an  army 
and  a  navy,  courts  of  justice  and  a  force  of  poUce,  the 
enforcement  of  a  criminal  law  and  of  statutes  in  ref- 
erence to  sanitation,  adulteration  of  food,  inspection 
of  steamboats,  etc.,  these  being  indirectly  protective  in 
their  character;  but  it  could  not  comprise  the  conduct 
of  the  post-office,  the  maintenance  of  hospitals  and 
poor-houses,  or  the  operation  of  railroads.  Only  such 
actions  on  the  part  of  the  state  as  were  directed  to  pre- 
vent the  interference  of  its  citizens  with  one  another 
would  be  legitimate. 

2.  Individualism  as  based  on  a  theory  of  justice. 
This  system  of  individual  Uberty  against  the  interfer- 
ence of  government  has  been  defended  on  different 
groimds.  As  a  matter  of  justice  it  has  been  argued  that 
the  individual  has  a  right  to  be  let  alone.  On  economic 
grounds  it  has  been  contended  that  it  pays  to  let  him 
alone.  Lastly,  on  purely  scientific  grounds,  it  has  been 
argued  that  it  is  in  general  consonance  with  the  evolu- 
tionary nature  of  human  progress  that  the  individual 
should  struggle  for  himself  and  survive,  or  fail,  according 
to  his  fitness.  The  first  of  these  arguments  —  the  re- 
striction of  the  operation  of  government  to  the  defense 


356         THE  PROVINCE  OF  GOVERNMENT 

of  the  rights  of  the  individual  —  is  esp>ecially  found 
in  the  writings  of  the  political  philosophers  of  the 
later  eighteenth  and  early  nineteenth  centuries.^  We 
find  it  in  the  theory  of  the  state  advanced  by  Kant  and 
Fichte  and  following  as  a  corollary  upon  their  view  of 
the  doctrine  of  the  social  contract.  Kant,  actuated  by  a 
spirit  of  protest  against  the  paternal  interference  of  the 
Continental  governments  of  his  day,  and  their  intrusion 
into  the  private  life  of  the  citizen,  bases  his  views  of  gov- 
ernmental functions  on  the  idea  of  liberty,  and  assigns 
to  the  state  "the  hindering  of  the  hindering  of  Uberty" 
as  its  proper  pohcy.^  But  among  German  writers  Wil- 
helm  von  Humboldt,  in  his  Sphere  and  Duties  of  Govern- 
ment,^ offers  the  most  complete  expression  of  the  thor^ 
oughgoing  poUtical  individualism  characteristic  of  this 
period.  Taking  as  his  starting-point  the  "individual 
man  and  the  highest  ends  of  his  existence,"  Hmnboldt 
finds  the  paramount  consideration  to  be  that  of  individ- 
ual variety  and  self-development.  On  this  the  active 
interference  of  government  can  have  none  but  a  detri- 
mental effect.  For  this  reason  "the  state  is  to  abstain 
from  all  soUcitude  for  positive  welfare,  and  not  to  pro- 
ceed a  step  further  than  is  necessary  for  mutual  security 
and  protection  from  foreign  enemies."  Even  such  ex- 
amples of  interference  as  national  education  and  state 
reUef  of  the  poor  are  to  be  condenmed.  This  pohtical 
theory  of  non-interference  received  a  decided  stimulus 
from  its  false  analogy  with  the  doctrine  of  popular  sover- 
eignty. It  was  but  natural  that  at  the  beginning  of  mod- 
em democratic  government  the  idea  of  the  right  of  the 
nation  to  govern  itseK  should  be  confounded  with  the 

'  An  excellent  critique  of  the  individualism  of  the  eighteenth  cen- 
tury and  its  transmission  to  the  nineteenth  is  found  in  Michel,  L'ldie 
de  VEtat  (introduction  and  bk.  iii). 

>  See  above,  bk.  i,  chap.  v.         *  Written  1791 ;  published  1852. 


INDIVIDUALISM  367 

somewhat  similar  claim  of  the  individual  to  be  left  alone 
to  manage  his  own  affairs.  PoUtical  freedom  and  non- 
interference seemed  synonymous  terms.  In  America  the 
idea  of  individual  rights  was  dominant  during  the  forma- 
tive period  of  the  RepubUc.  The  original  situation  of 
the  colonists,  compelled  to  wring  their  sustenance  from 
a  reluctant  wilderness,  the  discredit  of  government  in 
general  by  the  land  fees,  quit  rents,  and  tea  taxes  of  the 
royal  regime,  inspired  the  Americans  with  an  intense  be- 
lief in  self-reUance  and  individual  rights.  We  find  it  as 
the  central  feature  of  the  political  philosophy  of  Thomas 
Jefferson,  and  the  writers  of  the  period,^  and  it  has  per- 
sisted until  to-day  in  the  opinions  held  by  a  large  section 
of  the  people  of  the  United  States. 

The  individualistic  theory  of  governmental  non-in- 
terference resting  on  a  doctrine  of  individual  rights  has 
an  attractive  and  undoubtedly  plausible  appearance. 
Its  weak  point  lies  in  the  fact  that  on  closer  examination 
it  is  seen  to  contain  inconsistencies  of  a  serious  charac- 
ter. To  carry  it  out  fully  and  absolutely  would  involve 
the  adoption  of  an  attitude  at  variance  with  the  dic- 
tates of  common  sense,  and  one  which  no  government 
has  ever  found  it  practical  to  completely  accept.  Mill 
has  shown  that  the  limitation  of  the  province  of  govern- 
ment to  the  prevention  of  force  and  fraud  "excludes 
some  of  the  most  indispensable  and  unanimously  recog- 
nized of  the  duties  of  government."  *  Every  govern- 
ment recognizes  and  enforces  the  right  of  private  prop- 
erty, but  it  can  be  objected  that  this,  in  the  case  at  any 
rate  of  property  in  land,  looks  very  much  like  positive 
interference,  since  the  maintenance  of  the  claim  of  one 

*  See  C.  E.  Merriam,  History  of  American  Political  Theoriea. 

*  John  Stuart  Mill,  PrincipUa  of  Political  Economy,  bk.  v,  chaps.  I 
and  XI. 


358         THE  PROVINCE  OF  GOVERNMENT 

individual  is  equivalent  to  the  exclusion  of  all  others. 
In  the  case  of  the  regulation  of  the  ri^t  of  bequest,  the 
fact  of  interference,  though  universally  approved,  is 
still  more  evident.  In  matters  such  as  the  coining  of 
money,  and  the  conduct  of  the  postal  service,  we  have 
instances  of  governmental  action  in  positive  direction 
of  such  obvious  convenience  and  general  utility  as  en- 
tirely to  warrant  the  violation  of  individual  liberty 
involved.  In  other  cases,  as  has  been  shown  in  detail 
by  Professor  Sidgwick,^  there  is  an  obvious  breach  of 
public  morality  in  a  policy  of  complete  abstention;  that 
a  government  should  leave  deserted  children  to  starve, 
and  content  itseK  with  "not  interfering"  with  the  des- 
titute poor,  is  a  point  of  view  that  meets  with  almost 
imiversal  condemnation.  The  positive  duties  of  the 
state  in  regard  to  national  education  are  also  generally 
admitted,  although  it  is  hard  to  find  a  defense  for  such 
a  function  of  government  on  a  purely  individuaUstic 
plan. 

3.  Based  on  a  theory  of  profitability:  the  doctrine  of 
laissez-faire.  The  view  that  social  justice  demands 
that  the  individual  should  be  left  in  possession  of  his 
"natural  rights"  may  therefore  be  discarded.  Far  more 
importance  has  attached  to  the  economic  defense  of  in- 
dividuahsm,  the  claim  that  it  is  more  profitable  for 
the  welfare  of  industry  and  commerce  that  every  one 
should  be  left  to  follow  his  own  interest  as  he  himself 
understands  it.  This  is  the  doctrine  that  was  paramount 
in  England  during  the  rise  of  modem  industriahsm  and 
which  was  to  a  large  extent  reflected  in  America  and 
elsewhere.  The  cause  of  the  pecuhar  dominance  of  in- 
dividualism in  the  direction  of  economic  policy  is  to  be 
found  partly  in  the  industrial  circumstances  of  the  time, 

'  Henry  Sidgwick;  Principles  0/  Political  Economy,  bk.  iii,  chap.  n» 


INDIVIDUALISM  359 

partly  in  the  effect  exercised  upon  public  opinion  by  the 
writings  of  the  political  economists.  During  the  period 
between  1750  and  1850,  England,  and  in  consequence 
the  industrial  world,  underwent  a  series  of  economic 
changes  of  such  fundamental  importance  as  to  earn  the 
name  of  the  "Industrial  Revolution."  ^  The  invention 
of  special  machinery  for  the  textile  industries  (the  spin- 
ning jenny,  the  mule,  the  power  loom,  the  cotton  gin), 
together  with  the  application  of  steam  as  a  motive 
power,  changed  the  system  of  production  from  its  previ- 
ously restricted  and  domestic  character  and  established 
the  factory  system.  The  contemporary  improvements 
in  the  smelting  of  iron  ore  (coal  being  used  as  fuel),  the 
improved  means  of  transportation  in  the  shape  of  better 
roads,  canals,  and  later  the  introduction  of  steamboats 
(1807)  and  the  building  of  railroads  (1830)  enormously 
increased  productive  power  and  stimulated  international 
exchange  of  products.  At  the  same  time  the  existing 
system  of  government  regulation  of  industry  (the  tolls, 
duties,  prohibitions,  labor  statutes,  etc.)  became  en- 
tirely out  of  harmony  with  the  industrial  situation  and 
with  the  need  for  mobiUty  of  capital  and  labor  and  op- 
portunity to  exploit  foreign  commerce. 

The  inadequacy,  and  to  a  great  extent  the  positive 
hindrance,  of  the  older  system  of  state  interference  be- 
came apparent  and  contributed  directly  to  the  rise  of 
modern  political  economy.  Adam  Smith,  in  Wealth  of 
Nations  (1776),  followed  by  Ricardo,  Malthus,  Fr6d6ric 
Bastiat  and  others,  elaborated  the  economic  system  of 
individual  Uberty  as  the  new  guide  of  legislative  pol- 
icy. The  fundamental  argument  of  their  system  nms  as 

•  The  studfent  may  with  profit  consult  in  this  connection  Toynbee'a 
Industrial  Revolution,  Cunningham's  Growth  of  English  Industry  and 
Commerce,  and  Hobson's  Evolulum  of  Modem  Capitalism. 


^         THE  PROVINCE  OF  GOVERNMENT 

follows:  Every  man  is  actuated  in  his  economic  relations 
mainly  by  the  pursuit  of  his  own  interest.  If  individuals 
are  left  free  to  follow  their  own  choice  in  the  use  of  their 
capital,  the  sale  of  their  labor,  or  the  renting  of  their 
property,  the  hberty  of  each  will  be  in  the  general  inter- 
est of  all.  For  capital  and  labor  will  by  this  means  be 
directed  to  those  operations  in  which  they  are  most 
profitably  employed,  and  in  which  the  remuneration  for 
them  is  in  consequence  the  highest.  A  similar  reasoning 
applies  to  prices;  for  if  articles  are  freely  exchanged,  an 
increased  demand  for  any  commodity  will  tend  to  raise 
the  price  and  to  call  forth  an  additional  supply,  until  by 
the  operation  of  these  balanced  forces  an  equilibrium  is 
obtained.  International  exchange  of  goods,  if  left  unre- 
stricted, will  be  effected  in  the  quantity  and  kind  most 
profitable  to  those  making  the  exchange :  every  country 
will  prefer  to  direct  its  labor  towards  the  production  of 
those  articles  for  which  it  has  the  greatest  adaptability 
and  will  rely  on  its  trade  with  other  nations  to  supply 
the  commodities  whose  production  it  finds  relatively 
difficult.  We  have  thus  a  general  economic  harmony  in 
which  every  individual  seeks  to  obtain  the  greatest  ad- 
vantage for  himself  to  the  general  well-being  of  all.  In 
such  a  state  of  things  government  interference  becomes 
needless  and  necessarily  noxious.  To  fix  prices  and 
wages  by  legislative  act,  to  assign  a  legal  rate  of  interest 
and  prescribe  a  legal  schedule  of  rent,  to  prohibit  im- 
portation or  hamper  the  movement  of  labor  from  trade 
to  trade  or  from  place  to  place,  —  all  this  is  contrary 
to  a  natural  law  which  if  left  to  itself  will  coordinate 
everything  to  the  best  advantage. 

The  effect  of  this  teaching  throughout  the  world,  but 
especially  in  Great  Britain,  was  momentous.  It  led  to 
the  repeal  (1813-14)  of  the  long-standing  regulation  of 


INDIVIDUALISM  361 

labor  under  the  Elizabethan  statute.  It  occasioned  the 
abrogation  of  the  laws  against  free  combination  of 
workingmen  (1824-25)  and  of  the  laws  of  settlement  re- 
stricting the  movement  of  laborers,  the  repeal  of  the 
remains  of  the  Navigation  Code  (1849)  which  since  the 
reign  of  Charles  II  had  sought  to  limit  the  trade  with 
British  colonies  to  the  ships  of  the  mother  country,  and 
the  abolition  of  the  trade  monopoly  of  the  East  India 
Company.  It  found  its  greatest  triumph  in  the  aboli- 
tion of  the  Com  Laws  (1846),  followed  by  the  repeal  of 
the  remaining  protective  duties  and  the  establishment 
in  the  United  Kingdom  of  the  system  of  free  trade.  ^  In 
America,  though  the  absence  of  positive  interference  in 
the  past  prevented  the  necessity  of  similar  statutes  of 
repeal,  the  same  ideas  exercised  an  enormous  influence. 
The  writings  of  earlier  American  economists  reflect  with 
what  General  Walker  has  called  a  "Chinese  fidelity" 
the  ideas  of  the  English  school;  and  the  low-tariff  move- 
ment before  the  war  was  based  on  the  doctrine  of  free 
trade.  In  a  succeeding  chapter  we  shall  have  occasion  to 
refer  to  the  later  criticism  of  natural  liberty. 

4.  Based  on  a  biological  analogy:  the  survival  of  the 
fittest.  The  evolutionary  basis  of  the  individualistic 
theory  of  governmental  functions  has  not  enjoyed  the 
same  prominence  as  the  economic  doctrine.  We  see  it 
especially  in  the  political  philosophy  of  Herbert  Spencer. 
As  we  have  already  noticed  in  connection  with  the  or- 
ganic theory  of  society,  Spencer  endeavors  to  apply  the 
biological  theory  of  evolution  to  the  interpretation  of 
social  and  industrial  progress.  The  government  is  re- 
garded as  one  of  the  "organs"  of  society.  It  should  be 
entrusted  only  with  that  function  for  which  it  is  specially 
adapted;  and  with  the  advance  of  social  complexity  it 

»  A.  Mongredien,  History  0/  the  Free^Trade  Movement. 


362         THE  PROVINCE  OF  GOVERNMENT 

must  lose  in  scope  what  it  gains  in  intensity.  "A  func- 
tion to  each  organ,  and  each  organ  to  its  own  function," 
says  Spencer,  "is  the  law  of  all  organization.  .  .  .  The 
lungs  cannot  digest,  the  heart  cannot  respire,  the  stom- 
ach cannot  propel  blood.  .  .  .  Must  we  not  expect  that 
with  government  also,  special  adaptation  to  one  end 
implies  non-adaptation  to  other  ends?  "  Spencer,  in  his 
earlier  writings,  at  any  rate,  was  willing  to  follow  his 
theory  to  its  logical  outcome,  and  to  erect  the  dogma  of 
"the  survival  of  the  fittest"  into  a  moral  law.  To  inter- 
fere with  its  operation  was  to  disturb  the  "natural" 
order  of  progress.  Should  the  state  aid  the  poor,  the 
sick,  and  the  aged,  it  thereby  contributes  to  the  sur- 
vival of  forms  which  have  no  claim  to  survive,  and  whose 
existence  is  a  detriment  to  life  in  general.  "It  seems 
hard,"  he  says,  "  that  a  laborer  incapacitated  by  sickness 
from  competing  with  his  stronger  fellows  should  have  to 
bear  the  resulting  privations.  It  seems  hard  that  wid- 
ows and  orphans  should  be  left  to  struggle  for  life  or 
death.  Nevertheless  when  regarded  not  separately,  but 
in  connection  with  the  interests  of  universal  humanity, 
these  harsh  fatahties  are  seen  to  be  full  of  beneficence." 
The  theory  thus  advanced  is  interesting  as  illustrating 
the  extreme  form  which  individualism  was  apt  to  as- 
sume during' the  period  of  its  dominance,  but  hardly 
needs  a  detailed  refutation.  Such  an  argument  would 
apply  equally  well  to  the  suppression  of  private  charity, 
private  aid  to  the  sick,  and  private  maintenance  of  the 
poor  as  well  as  to  government  reUef .  If  the  sole  test  of 
fitness  to  survive  is  found  in  the  fact  of  survival,  then 
the  prosperous  burglar  becomes  an  object  of  commenda- 
tion, and  the  starving  artisan  a  target  of  contempt.  If  it 
is  assumed  that  widows  will  die  unless  the  government 
helps  them,  and  that  usurers  will  grow  rich  unless  the 


INDIVIDUALISM  363 

government  stops  them,  this  seems  a  very  poor  reason 
for  saying  that  widows  ought  to  die  and  that  usurers 
ought  to  grow  rich.  Even  taking  the  evolutionary  argu- 
ment on  its  own  ground,  it  can  be  urged  with  justice 
that  as  soon  as  the  government  does  "interfere,"  then  its 
interference  becomes  one  of  the  facts  of  the  situation, 
one  of  the  operative  forces  to  be  taken  into  account.  In- 
deed the  attempt  to  thus  apply  the  biological  doctrine 
of  evolution  to  the  theory  of  the  functions  of  govern- 
ment involves  a  distortion  of  the  truly  scientific  point  of 
view.^ 

5.  Conflicting  forces.  Even  in  the  first  half  of  the 
nineteenth  century,  when  the  individualistic  view  of 
government  was  dominant  in  both  theory  and  practice, 
its  doctrines  were  not  altogether  unopposed.  The  won- 
derful progress  made  in  productive  industry  by  the  fac- 
tory system  operating  under  a  regime  of  natural  liberty 
seemed  the  strongest  possible  argument  in  its  favor.  As 
against  this  the  appalling  distress  of  the  working  classes 
during  the  same  period  plainly  called  for  a  more  active 
policy  on  the  part  of  the  state  than  mere  non-interven- 
tion. The  factory  system  under  the  play  of  free  con- 
tract seemed  inevitably  to  lead  to  oppressive  hours  of 
labor,  unwholesome  and  brutalizing  conditions  of  work, 
and  the  employment  of  children  of  immature  age  as  a 
substitute  for  adult  labor.  ^  The  degradation  and  insuffi- 
cient remuneration  of  the  workers  as  a  consequence  of 
their  enjoyment  of  "natural  Uberty"  called  forth  a 
strong  current  of  opinion  in  opposition  to  the  poUcy  of 
non-interference.  Thomas  Carlyle  in  his  Past  and  Pres- 

'  See  in  this  connection  G.  Nasmyth,  Social  Progress  and  the  Dar- 
winian Theory  (1916). 

*  An  account  of  the  miseries  occasioned  by  the  factory  system 
may  be  found  in  Spencer  Walpole's  History  of  England,  vol.  iii,  chap. 

3UU. 


364         THE  PROVINCE  OF  GOVERNMENT 

ent  (1843)  and  Loiter  Day  Pamphlets  (1856)  *  denounced 
the  "dismal  science"  of  the  economists  and  ridiculed 
the  doctrine  of  laissez-faire.  The  practical  effect  of  this 
humanitarian  movement  is  seen  in  the  legislative  regu- 
lation of  factory  labor  in  Great  Britain  by  Acts  of  Par- 
liament of  1833,  1844,  1847,  1850,  and  later  statutes. 
These  measures  which  limit  the  hours  of  employment 
for  women  and  children  are  flatly  at  variance  with  the 
individuaUstic  principle.  They  have,  however,  been 
subsequently  imitated  in  the  legislation  of  the  great 
industrial  States,  including  most  of  the  manufacturing 
States  of  the  American  Union.  The  further  disintegration 
of  the  principle  of  non-interference  will  be  traced  in  the 
third  chapter.  From  what  has  been  said,  however,  it 
may  safely  be  concluded  that  pure  individualism  in  the 
conduct  of  government  is  impossible.  Its  adoption,  in 
complete  form,  runs  counter  to  the  most  instinctive 
impulses  of  humanity  and  would  neglect  governmental 
duties  of  the  most  evident  character.  As  a  matter  of 
political  justice  it  rests  on  a  mechanical  attempt  to 
completely  divorce  individual  and  social  rights.  On  an 
economic  basis  it  overlooks  the  plain  advantages  of  co- 
operation and  regulated  effort.  As  a  scientific  law  it  will 
not  stand  examination. 

READINGS  SUGGESTED 

Mill,  J.  S.,  Principles  of  Political  Economy,  bk.  v,  chap,  xi. 
Ritchie,  D.  G.,  Studies  in  Political  and  Social  Ethics  (1902), 

chap.  III. 
M'Kechnie,  W.  S.,  The  State  and  the  Individual  (1896),  part  n, 

chaps.  XIV,  XV,  XVI,  xvii. 

'  "Let  us  hope  that  the  leave-alone  principle  has  got  its  apotheo- 
sb.  .  .  .  Respectable  Professors  of  the  dismal  science,  your  small  'Law 
ri  God'  is  hung  up  along  with  the  multiplication  table  itself  .  .  .  the 
length  of  your  tether  is  pretty  well  run. ' '  {.Latter  Day  Pamphlets,  no.  x.) 


INDIVIDUALISM  365 

FURTHER  AUTHORITIES 

Montague,  F.  C,  Limits  oj  Individual  Liberty  (1885). 

Donisthorpe,  W.,  Individtuilism  (1894). 

Kelly,  E.,  Government,  or  Human  Evolution  (1901). 

Michel,  H.,  L'Idie  de  I'Etat  (1895). 

Sidgwick,  H.,  Elements  of  Politics  (2d  edition,  1897). 

Von  Humboldt,  Sphere  and  Duties  oj  Government  (1791). 

Pollock,  Sir  F.,  History  of  Science  of  Politics  (1900). 

Godwin,  W.,  Political  Justice  (1798). 

Bluntschli,  J.  K.,  Geschichte  der  Neueren  Staatsunssenschaft 
(3d  edition,  1881). 

Cunningham,  W.,  Growth  of  English  Industry  and  Commerce 
(1903),  vols.  II  and  m. 

Spencer,  H.,  The  Man  versus  the  State  (1884). 

Brown,  W.  Jethro,  The  Underlying  Principles  of  Modem  Legis- 
lation (1914). 

Gide,  C,  and  Rist,  C,  History  of  Economic  Doctrines  (trans- 
lated) (1913). 

Nasmyth,  G.,  Social  Progress  and  the  Darmnian  Theory 
(1916). 


CHAPTER  n 
SOCIALISM 

1.  The  socialistic  theory:  its  destructive  criticism  —  2.  The  con- 
structive programme  of  socialism  —  3.  The  German  Social  Demo- 
crats —  4.  Socialism  in  England  and  America. 

1.  The  socialistic  theory:  its  destructive  criticism. 
Entirely  opposed  to  the  individualistic  conception  of 
government  are  the  doctrines  known  as  socialism,  col- 
lectivism, communism,  and  which,  subject  to  later  dis- 
tinction, may  be  spoken  of  together  as  the  socialistic 
theory  of  the  state.  No  socialistic  state  has  actually 
existed  on  any  except  a  small  and  experimental  scale. 
Socialism  is  therefore  mainly  an  ideal  rather  than  an 
actuality.  But  the  doctrines  it  embodies  have  appealed 
so  strongly  to  so  many  minds,  have  exercised  such  an 
important  influence  on  actual  legislation  and  practical 
politics,  and  contain  in  spite  of  their  fallacious  nature  so 
much  that  is  of  use  and  inspiration,  as  to  merit  a  special 
treatment. 

Socialistic  theories  present  both  a  destructive  and  a 
constructive  aspect.  They  offer  in  the  first  place  a  criti- 
cism of  the  existing  industrial  system  (whose  basis  is  in- 
dividualistic), with  a  view  to  show  its  inherent  unsound- 
ness and  its  inevitable  collapse.  In  the  second  place  they 
propose  to  substitute  for  the  present  state  a  cooperative 
commonwealth  to  be  founded  on  associated  effort  and 
joint  control.  The  critical  part  of  the  socialistic  doc- 
trine is  intended  to  show  that  the  individualistic  system 
of  industry  is  wasteful  and  ineffective  from  an  economic 
point  of  view,  and  inequitable  in  that  the  remuneration 


SOCIALISM  367 

which  falls  to  the  different  classes  of  workers  is  not  ac- 
cording to  their  relative  deserts.  The  more  celebrated 
writers  of  the  school,  as  for  instance  the  great  German 
socialist  Karl  Marx  in  his  Capital,  which  has  been  called 
the  gospel  of  socialism,  criticize  the  existing  state  from  a 
point  of  view  elaborately  historical.  Marx  alleges  that 
the  system  of  individual  private  property  on  which  it 
rests  is  the  outcome  of  original  aggression  of  the  strong 
against  the  weak,  representing  an  appropriation  of  the 
means  of  existence  by  the  stronger  class,  and  their  conse- 
quent exploitation  of  the  mass  of  workmen,  who  remain 
in  a  state  of  dependence  spoken  of  as  wage  slavery.  The 
progressive  improvement  of  the  means  of  production 
renders  the  workmen  more  and  more  dependent  on 
those  who  employ  them.  The  appropriation  of  the  land 
by  private  owners  (a  process  practically  complete  in 
older  countries)  renders  it  impossible  for  any  individual 
to  apply  his  labor  directly  to  the  natm-al  resources  of 
the  earth.  The  increasing  use  of  machinery,  although 
vastly  more  efficient  than  the  hand  labor  which  it  has 
replaced,  makes  all  productive  operations  more  and 
more  dependent  on  the  possession  of  capital,  on  the 
ability  to  purchase  machines,  premises,  etc.,  and  to 
forego  the  prospect  of  immediate  reward  for  the  sake  of 
future  profit.  In  such  a  condition  of  things  the  isolated 
laborer  has  nothing  whereon  to  subsist  except  his  labor 
power,  which  he  must  sell  as  best  he  can  to  the  highest 
bidder.  In  the  nature  of  things  he  cannot  receive  less 
for  it  than  what  will  enable  him  to  barely  exist,  but  any- 
thing over  and  above  this  will  depend  on  the  bargain  he 
is  able  to  make  with  his  employer.  Now  this  bargain, 
although  nominally  effected  under  the  rule  of  free  con- 
tract, is  in  reality  a  forced  one.  The  workman  must  sell 
his  labor  or  die  of  starvation.  But  since  the  increase  of 


THE  PROVINCE  OF  GOVERNMENT 

population,  as  Malthus  and  others  have  shown,  is  con- 
tinuous until  some  point  where  it  is  actually  checked  by- 
lack  of  means  of  subsistence,  the  labor  market  will  al- 
ways be  so  crowded  with  laborers  as  to  bring  down  the 
level  of  wages  to  that  which  practically  amounts  to 
the  necessaries  of  Ufe.  Should  wages  rise  above  this,  a 
responsive  upward  movement  of  population  must  bring 
them  down  again.  Such  is  the  famous  "Iron  Law  of 
Wages"  formulated  by  Lassalle  on  the  basis  of  the  Ri- 
cardian  economics.  The  other  side  of  the  industrial  bar- 
gain is  represented  by  what  the  employer  receives  from 
the  laborer.  This  consists  each  day  of  a  certain  amount 
of  labor  power,  which  results  in  the  fabrication  of  a  cer- 
tain number  of  useful  commodities  produced  by  the 
apphcation  of  the  day's  labor.  From  the  nature  of 
the  bai^ain  it  does  not  follow  that  the  commodities 
thus  produced  by  the  workman's  labor  need  be  exactly 
equivalent  to  the  commodities  given  to  him  through 
the  medimn  of  his  wages  by  the  employer.  Indeed,  the 
socialistic  writers  assure  us  the  two  are  by  no  means 
equal.  The  workman  produces  in  the  day  more  than  he 
consumes  (for  otherwise  the  employer  would  have  no  mo- 
tive in  undertaking  production),  and  the  surplus  thus 
created  falls  to  the  lot  of  his  fortunate  employer.  The 
laborer  who  sells  his  labor  imder  compulsion  is  com- 
pelled to  submit  to  this  fraudulent  system.  Such  is  the 
doctrine  of  surplus  value,  that  is  particularly  associated 
with  the  name  of  Karl  Marx,  and  which  is  the  founda- 
tion of  the  critical  theory  of  socialism.  The  point  in 
which  it  Hes  open  to  attack  is  that  it  attributes  to  labor 
the  whole  of  the  productive  result,  and  does  not  allot 
a  share  to  the  machine  which  was  used  in  cooperation 
and  which  is  the  property  of  the  capitalist.  \ 

It  is  impossible  here  to  enter  into  the  economic  dis- 


SOCIALISM  369 

cussion  to  which  this  question  gives  occasion.  It  is  only- 
intended  to  show  on  what  grounds  the  socialistic  con- 
tention accuses  the  present  system  of  being  essentially 
inequitable.  Marx  and  the  writers  who  have  followed 
his  lead  are  not  content  with  alleging  the  present  un- 
fairness of  the  method  of  free  contract  and  free  competi- 
tion. They  claim  that  with  the  continued  appUcation 
of  machinery  and  improvement  of  production,  the  con- 
tinued appropriation  of  natural  resources  and  constant 
growth  of  population,  the  inequity  of  the  system  will  be 
emphasized,  the  gulf  between  the  capitahsts  and  the  la- 
borers, the  rich  and  the  poor  will  be  further  and  further 
increased.  Sooner  or  later,  they  maintain,  the  forces 
thus  at  work  will  precipitate  a  vast  social  catastrophe 
which  can  be  avoided  only  by  altering  the  industrial 
basis  of  our  social  system,  and  substituting  associated 
effort  for  the  economic  anarchy  of  free  competition. 
Their  theory  thus  assumes  the  aspect  of  a  social  proph- 
ecy. 

On  more  vahd  grounds  the  socialists  draw  attentioi) 
to  the  wastefulness  of  the  individualistic  method  of 
production  and  distribution.  A  vast  amount  of  work  is 
performed  under  it  that  has  no  social  utihty,  a  great 
deal  of  work  is  duplicated  and  even  done  several  times 
over  with  no  general  advantage.  The  labor  wasted  in 
competitive  advertising,  and  efforts  of  a  similar  char- 
acter intended  merely  to  divert  business  from  one 
person  to  another,  is  the  most  conspicuous  instance  of 
economic  loss  of  the  first  class.  Instances  of  work  that 
is  needlessly  multiplied  are  seen  in  the  case  of  com- 
peting railroads  running  trains  over  parallel  lines,  and 
in  retail  stores  existing  in  considerable  number  where 
one  general  distributing  establishment  could  do  the 
work.  Perhaps  the  simplest  and  best  illustration  of  the 


370         THE  PROVINCE  OF  GM3VERNMENT 

point  in  question  is  seen  in  the  contrast  between  the 
delivery  of  letters  at  consecutive  houses  and  in  neigh- 
boring streets  by  a  postman  (an  official  under  collec- 
tive management)  and  the  waste  of  time  and  labor 
involved  by  the  spasmodic  delivery  of  milk  and  gro- 
ceries at  various  houses  throughout  an  extensive  dis- 
trict by  the  employees  under  individual  management. 
It  is  in  the  economic  saving  thus  effected  that  the 
amalgamation  of  industry  by  large  corporations  proves 
economically  superior  to  production  and  distribution 
by  small  concerns.  The  large  industrial  companies 
and  department  stores  of  the  present  are  standing 
proof  of  the  fact.  These  the  socialists  regard  as  indi- 
cating the  necessary  passing  of  the  older  system  of 
individualism,  the  large  corporations  representing  a 
transition  stage  towards  the  general  industrial  man- 
agement by  the  state. 

2.  The  constructive  programme  of  socialism.  From 
what  has  been  said  it  will  be  easily  seen  that  the  critical 
or  destructive  side  of  sociaUstic  theory  contains  a  great 
deal  that  is  true  and  extremely  useful  in  indicating  the 
proper  direction  of  measures  of  social  reform.  The 
other  side  of  sociaUsm,  its  constructive  programme  for 
a  cooperative  commonwealth,  is  much  weaker  and  can- 
not be  worked  out  in  detail  without  meeting  with  hos- 
tile criticism  from  socialists  themselves.  In  general 
terms  the  programme  of  socialism  is  to  substitute  gov- 
ernment management  for  private  management,  to  put 
all  productive  industry  under  state  administration,  thus 
making  the  state  the  sole  employer,  and  putting  all 
the  workers  in  the  employ  of  the  state.  On  this  system 
the  functions  of  government  would  extend  to  the  whole 
domain  of  economic  operations;  it  would  manage  all 
the  railroads,  the  factories,  the  mines,  and  the  farms. 


SOCIALISM  371 

In  place  of  competing  retail  stores,  government  distrib- 
uting houses  would  be  established  for  deUvering  to  each 
citizen  his  share  of  the  national  production.  Individ- 
uals would  still  have  a  property  right  to  the  things  they 
actually  intended  to  use,  —  houses,  food,  clothes,  etc.,  — 
but  all  the  means  of  production  would  be  nationalized. 
The  inherent  impracticabihty  of  such  a  system  be- 
comes evident  when  one  turns  from  the  general  scheme 
of  production  to  the  question  of  distribution  —  the 
method  according  to  which  the  wages  of  the  workers 
under  the  socialist  state  are  to  be  managed.  On  this 
point  there  is  a  great  variety  of  opinion.  The  most  ex- 
treme view  is  foimd  in  those  writers  who  recommend 
that  everything  produced  should  be  conmion  property, 
all  persons  taking  from  the  general  stock  according  to 
their  needs.  La  mise  au  tas,  la  prise  au  tas,  ran  the  for- 
mula adopted  by  Proudhon,  the  French  anarchistic 
writer.  Such  a  system  would,  of  course,  leave  no  such 
thing  as  individual  wages,  the  remuneration  of  each 
laborer  being  according  to  his  needs,  not  according  to 
his  efficiency.  Somewhat  similar  to  this  is  the  sugges- 
tion for  a  general  equality  of  wages,  all  persons  being 
compeUed  to  work  for  an  equal  number  of  hours  (or 
a  number  of  hours  equalized  according  to  the  rela- 
tive attractiveness  or  repulsiveness  of  the  trade)  and 
all  receiving  the  same  remuneration.  This,  it  will  be 
remembered,  is  the  solution  of  the  wages  problem  offered 
by  Edward  Bellamy  in  his  Looking  Backward,  a  pres- 
entation of  the  socialist  state  under  the  form  of  a  ro- 
mance, which  attracted  at  the  time  of  its  publication 
(1888)  a  phenomenal  attention.  To  all  except  the  most 
sanguine  visionaries  any  socialistic  scheme  involving 
equaUty  of  wages  is  totally  impracticable.  It  is  evident 
that  under  such  an  arrangement  the  individual  stimu- 


372         THE  PROVINCE  OF  GOVERNMENT 

lus  to  work  would  be  gone  and  the  efficiency  of  pro- 
duction hopelessly  impaired  by  idleness.  Bellamy  and 
others  attempt  to  argue  that  under  the  improved  con- 
ditions brought  by  socialism,  the  elevation  of  the  gen- 
eral moral  tone  would  severely  discountenance  any  such 
shirking  of  work,  and  that  with  the  shortened  hours 
of  labor  possible  under  cooperative  work  there  would  be 
no  aversion  to  labor  on  the  part  of  the  individual.  Such 
an  argument  is  altogether  of  an  idealistic  character, 
and  contains  the  most  monstrous  assumptions  of  a  sud- 
den and  mechanical  renovation  of  human  nature,  so 
sweeping  as  to  beg  the  whole  question  of  social  reform. 
The  argument  is  also  in  contradiction  to  the  method 
(adopted  by  Bellamy)  of  lengthening  or  shortening  the 
hours  of  labor  in  any  trade  in  order  to  attract  or  repel 
workers  according  to  the  needs  of  any  particular  mo- 
ment. This  plan  itself  rests  on  the  assumption  of  an 
aversion  to  work. 

We  come  finally  to  the  scheme  of  industrial  organi- 
zation that  may  be  described  as  socialism  proper,  in  op- 
position to  communism  and  collectivism.  In  this  case 
wages  are  to  be  awarded  to  each  laborer  according  to  his 
efficiency.  The  plan  supposes  a  hierarchy  of  officials 
(on  the  elective  principle)  who  control  the  productive 
process,  drafting  the  workers  from  trade  to  trade  as 
may  be  needed,  and  paying  salaries,  making  promotions, 
etc.,  according  to  the  industrial  efficiency  of  the  workers. 
The  pay  of  a  good  workman  would  be  high,  of  an  inef- 
ficient or  idle  workman  low.  The  scheme  would  be 
almost  perfect,  if  one  could  assume  the  official  per- 
sons who  assign  places,  salaries,  and  promotions  to  be 
omniscient  and  impeccable.  But  the  possibiUties  of  cor- 
ruption, the  play  of  interested  motives,  intrigue,  per- 
sonal spite,  and  unfairness  of  all  kinds  would  be  so 


SOCIALISM  373 

appalling  under  present  conditions  of  public  morality  as 
to  altogether  remove  such  suggestions  from  the  domain 
of  the  practicable.  If  all  industry  were  forcibly  appro- 
priated by  the  government  and  private  business  pro- 
hibited, the  individual  who  fell  under  the  odiimi  of 
the  "bosses"  and  "cliques"  that  might  very  possibly 
control  such  a  government  would  feel  himself  to  be 
under  a  despotism  from  which  the  organization  offered 
no  escape. 

The  arguments  against  a  general  centralized  socialism 
of  the  kind  described  are  of  such  evident  weight  that 
it  is  not  surprising  that  within  recent  years  many  va- 
riations of  socialism  have  been  put  forward  with  a  view 
to  escape  the  difficulties  of  the  centraUzed  plan.  There 
are,  for  example,  various  kinds  of  guild  socialism  and 
municipal  socialism.  The  main  principle  of  these  is 
the  same  idea  of  cooperative  effort  used  to  replace  in- 
dividual competition  as  lies  at  the  base  of  all  socialism. 
But  by  restricting  the  area  to  the  numbers  concerned, 
and  above  all  by  basing  the  union  on  similarity  of  oc- 
cupation and  interest,  it  is  hoped  to  avoid  the  brutal 
rigor  of  cast-iron  centralism.  More  notable  still  are  the 
various  schemes  which  go  by  the  name  of  "sjoidical- 
ism,"  in  which  the  industry  becomes  the  basis  of  social 
organization.  The  miners  take  the  mines,  the  railroad 
men  take  the  railroads,  the  operatives  take  the  fac- 
tories, and  so  on,  till  economic  society  consists  of 
vast  federated  groups  of  workers  each  exchanging  its 
products  with  the  others.  It  is  characteristic  of  sjoi- 
dicalism  that  it  seeks  to  gain  its  end,  not  by  the  la- 
borious methods  of  persuasion,  vote-getting,  and  po- 
litical activity,  but  by  "direct  action"  in  stopping  the 
wheels  of  the  world's  machinery.  It  hopes,  by  means 
of  the  general  strike,  the  turning-ofif  of  the  water  supply 


aw         THE  PROVINCE  OF  GOVERNIVIENT 

and  the  electric  light,  to  force  its  enemies  to  capitulate. 
It  forgets  that  if,  in  anger  against  the  capitalist,  it  turns 
off  the  light,  the  sjTidicalist  also  is  in  the  dark.^ 

3.  The  German  Social  Democrats.  Socialism,  how- 
ever, has  more  than  a  merely  theoretical  aspect.  On 
the  continent  of  Europe  it  has  made  itself  a  force  in 
practical  politics  of  the  highest  importance,  and  social- 
ist political  parties  have  of  late  assumed  some  impor- 
tance in  England  and  the  United  States.  But  it  is  in 
Germany  especially  that  the  sociahst  propaganda  has 
met  with  success,  and  has  exercised  a  powerful  influence 
on  the  legislative  policy  of  the  government.  The  evo- 
lution of  sociahsm  in  Germany  is  not  only  interesting 
of  itseK,  but  is  singularly  instructive  in  the  hght  it 
throws  upon  the  probable  future  of  socialist  political 
parties,  and  the  extent  to  which  they  are  likely  to  suc- 
ceed in  modifying  the  attitude  of  existing  governments. 
It  arose,  as  also  in  France,  in  the  earher  part  of  the  nine- 
teenth century,  assuming  at  first  an  altogether  ideal  and 
Utopian  form.*  The  earlier  socialists,  or  communists 
as  they  were  at  first  called,  greatly  underestimated  the 
enormous  difficulties  that  stand  in  the  path  of  social 
r^orm.  Attributing  all  existing  evils  to  the  prevalence 
of  the  capitalistic  system,  they  presumed  that  its  imme- 
diate aboHtion  in  favor  of  state  control  would  effect  an 
almost  immediate  regeneration  of  mankind.  The  origi- 
nal programme  of  socialism,  when  it  arrived  at  the  stage 
of  having  a  pohtical  progranune,  consisted  in  the  un- 

>  The  writer  of  this  book  has  endeavored  to  rfiow  in  another  work 
(The  Unsolved  Riddle  of  Social  Jiistice,  1919)  the  essential  fallacy  of 
all  the  different  brands  of  socialism,  while  admitting  the  cogency  of 
the  socisJist  indictment  of  the  rggune  under  which  we  live. 

*  Of  the  initial  period  of  modem  socialism  in  Germany,  Weitling's 
Die  Well  wie  sie  ist  imd  sein  soil  (1838),  and  in  France  the  writings 
of  Saint-Simon  and  Fourier,  may  be  cited  as  illustrative. 


SOCIALISM  375 

compromising  destruction  of  capitaHstic  industry.  This 
was  the  attitude  of  the  socialist  wing  of  the  revolution- 
ists that  for  the  time  being  overthrew  monarchical  gov- 
ernment in  France  in  1848,  and  threatened  its  existence 
in  the  German  convulsions  of  the  same  year.  After  the 
collapse  of  that  great  movement  the  German  socialists 
fell  into  opposing  groups  —  some  of  them  still  aiming 
at  a  general  imiversal  revolution,  and  attempting  to  or- 
ganize on  a  cosmopoHtan  basis,  others  recognizing  the 
present  national  state  as  their  starting-point,  and  de- 
sirous of  gaining  their  ends  by  constitutional  reform. 
By  the  latter  plan  socialism,  instead  of  fighting  itself 
into  power,  would  vote  itself  into  power.  The  greatest 
influence  during  this  period  was  exercised  by  Ferdi- 
nand Lassalle,  who  organized  a  German  Workingmen's 
Association,  and  advanced  as  an  immediate  programme 
the  use  of  state  credit  for  the  foundation  of  working- 
men's  productive  associations,  which  should  act  as  the 
beginning  of  a  socialist  state.  The  secession  of  the 
revolutionary  anarchists,  the  collapse  of  the  interna- 
tional aspect  of  the  movement,^  aided  the  growing 
tendency  of  German  socialism  towards  a  national  con- 
^itutional  form  whose  immediate  aim  should  be  the 
attainment  of  practical  measures,  rather  than  the  com- 
plete realization  of  the  ideal  state.  At  a  congress  at 
Gotha  in  1875,  a  general  union  of  the  SociaUst  Party 
was  effected  on  a  basis  of  compromise.  In  the  pro- 
gramme there  adopted  the  "abolition  of  the  system  of 
wage  labor"  was  indicated  as  the  ideal  of  sociahsm,  but 
certain  immediate  measures  were  proposed  "in  order  to 
prepare  the  way  for  the  solution  of  the  social  question." 

1  Kaii  Man,  in  1864,  while  a  refugee  in  London,  founded  the  Inter- 
national Workingmen's  Association,  which  aimed  at  social  revolution 
without  the  help  of  existing  governments;  the  movement  collapsed 
after  the  Franco-Pruesian  War. 


87«         THE  PROVINCE  OF  GOVERNMENT 

In  the  period  following  (1878-90)  the  party  under- 
went a  severe  persecution  at  the  hands  of  the  German 
Imperial  Government,  which  did  not,  however,  drive  it 
into  revolutionary  measures.  At  a  congress  held  at 
Erfurt  (1891)  a  revised  platform  was  adopted,  which 
became  the  official  programme  of  the  German  Social 
Democratic  Party  and  has  since  been  very  widely 
recognized  as  a  sort  of  charter  of  socialism.  It  demands 
universal,  equal,  and  direct  suffrage  by  ballot  (extend- 
ing the  franchise  to  women),  proportional  representation, 
direct  legislation,  substitution  of  a  universal  militia  for 
a  standing  army,  freedom  of  the  press  and  of  meeting, 
free  justice,  a  graduated  income  tax,  improved  factory 
legislation,  statutory  limitations  of  the  hours  of  labor. 
With  these  immediate  demands  are  coupled  a  general 
denunciation  of  the  evils  of  capitalistic  industry.  But 
it  is  asserted  that  the  "struggle  of  the  working  classes 
a^inst  capitalistic  exploitation  must  of  necessity  be  a 
poUtical  struggle,"^  and  it  will  be  seen  that  the  present 
demands  of  the  party  include  nothing  that  is  not  asked 
by  various  radical  groups  in  Anglo-Saxon  countries, 
except  perhaps  the  item  of  a  legal  labor  day.  On  this 
basis  the  progress  of  the  Social  Democrats  in  point  of 
numbers  has  been  extremely  rapid.  At  the  foundation 
of  the  German  Empire  they  elected  only  two  members 
to  the  Reichstag;  in  1893  they  elected  forty-four  mem- 
bers, representing  1,876,738  votes,  and  in  the  last  elec- 
tion before  the  Great  War  (that  of  1912)  succeeded  in 
returning  one  hundred  and  ten  members,  representing 
4,238,919  votes.  In  the  welter  of  parties,  groups,  and 
factions  which  has  occupied  the  remains  of  Germany 
since  the  war  it  is  no  longer  possible  to   distinguish 

I  A  translation  of  the  text  of  the  Erfurt  programme  may  be  found 
in  Ely's  Socialism  and  Social  Re/orm,  Appendix  i. 


SOCIALISM  377 

where  socialism  begins  and  ends.  But  before  the  war 
it  was  very  generally  conceded  that  the  Social  Demo- 
cratic Party  (including  therein  those  who  vote  for  so- 
cialist candidates)  was  not  entirely  made  up  of  socialiste. 
It  had  become  to  a  large  extent  the  party  of  discontent 
and  of  standing  opposition  to  the  imperial  government, 
and  was  by  no  means  to  be  looked  upon  as  entirely  made 
up  of  persons  beUeving  in  the  practicability  of  a  co- 
operative state. 

In  all  the  Continental  countries  one  of  the  vexed 
questions  of  present  socialism  is  the  extent  to  which 
the  earlier  doctrines  of  the  socialistic  theory  are  to  be 
maintained.  Some  of  the  sociahsts  tenaciously  adhere 
to  the  original  tenets  of  Karl  Marx,  and  persist  in  be- 
lieving in  the  inuninence  of  the  social  cataclysm.  This, 
however,  in  view  of  the  evident  improvement  in  the  lot 
of  the  working  classes  during  the  nineteenth  century, 
during  which  the  actual  wages  of  skilled  labor  were 
about  doubled,  is  an  expectation  that  seems  beUed.  A 
great  many  socialists  beUeve  in  the  progressive  alteration 
of  present  conditions  with  a  view  to  immediate  social 
amelioration  to  the  extent  actually  practicable.  These 
"revisionists,"  as  they  are  called  now,  everywhere  dis- 
pute the  field  with  socialists  of  the  older,  orthodox,  and 
Marxian  type.  Indeed,  it  may  be  claimed  that  the  greater 
number  of  socialists  now  favor  the  amelioration  of  pres- 
ent conditions  rather  than  their  complete  overthrow. 
The  socialists,  though  extremely  numerous  in  France 
and  Italy,  have  nowhere  else  as  much  cohesion  and  unity 
oft  operation  as  they  had  obtained  before  the  Great 
War  in  Germany.  In  France  in  particular  they  are 
divided  into  opposing  factions.  Some  of  them,  under 
the  name  of  "collectivists,"  are  of  the  Marxian  type, 
favoring  a  complete  economic  control  exercised  by  a 


»S         THE  PROVINCE  OF  GOVERNMENT 

centralized  govermnent;  others  advocate  the  adoption 
of  a  sociaUstic  programme  by  the  development  of  mu- 
nicipal control;  others  again,  the  "  possibihsts,"  are 
inclined  to  accept  any  measm-es  of  amehoration  that 
can  be  obtained  and  to  cooperate  with  any  existing 
governments  that  will  meet  their  views. 

It  is  obvious,  however,  that  the  coming  of  the  Great 
War  dealt  a  severe  blow  to  the  international  aspect  of 
socialism.  Before  1914  many  socialists  indulged  the 
vain  hope  that  the  sociahst  workers  of  the  world  were 
united  to  a  degree  that  would  forbid  warfare  between 
nation-states.  The  bond  of  a  common  economic  lot  and 
of  common  economic  aims  was  thought  to  be  stronger 
than  the  ties  of  race,  language,  and  national  pohtical 
union.  This  dream  was  shattered  like  glass.  The  social- 
ist had  forgotten  that  organized  control  is  a  factor  of 
profound  import.  Those  in  command  of  the  existing 
government  and  the  existing  national  army  have  a  long 
start.  But  even  apart  from  this  it  seems  clear  enough 
that  at  the  present  stage  of  the  world's  history  the  ties 
of  blood  and  language  and  neighborship  are  still  stronger 
than  the  mere  affiliation  of  international  groups. 

4.  Socialism  in  England  and  America.  Various  so- 
cialistic associations  have  been  formed  in  England 
—  the  Social  Democratic  Federation  (1881),  the  So- 
cialist League  (1884),  now  extinct,  and  the  Fabian 
Society.  The  latter  has  contained  among  its  members 
many  persons  of  marked  talent  —  the  two  Webbs,* 
Mrs.  Annie  Besant,  and  others  —  and  the  collection 
of  papers  published  by  it  under  the  title  of  Fabian  Es- 
says in  Socialism  has  had  an  extensive  sale.  The  pro- 
granmie  of  the  society  consists  in  the  gradual  introduo- 

>  Sidney  and  Beatrice  Webb,  well  known  as  joint  authors  of  Hit- 
lory  of  Traic-Unioniam,  etc 


SOCIALISM  379 

tion  of  socialism,  recognizing  the  need  of  a  transitional 
Btage  in  passing  from  capitalistic  industry  to  collective 
management.  In  the  United  States  there  have  been  nu- 
merous examples  of  practical  attempts  at  the  realiza- 
tion of  collective  management  in  the  foundation  of  va- 
rious communities  in  which  the  principle  of  associated 
labor  and  common  ownership  was  adopted.'  Of  these 
the  Rappites  of  New  Harmony  (later  of  Ekx)nomy)  and 
the  communists  of  Zoar,  Amana,  and  Oneida  are  famil- 
iar examples.  These  experiments  have  always  proved 
failures,  except  where  the  main  motive  was  religious 
and  not  economic,  and  where  the  community  of  prop>- 
erty  was  only  incidental  to  aspirations  of  a  higher 
character.  Of  late  years  socialism  has  appeared  in  the 
United  States  in  the  form  of  political  parties  which 
are  developing  a  considerable  voting  power.  The  So- 
cialist Party  and  the  Socialist  Labor  Party  are  the  most 
important.  In  the  presidential  elections  of  1912  some 
900,000  votes  were  given  to  the  Socialist  candidate 
and  29,000  to  the  Socialist  Labor  candidate.  In  the  elec- 
tion of  1916  the  Socialist  Labor  candidate  received  some 
14,000  and  the  SociaUst  candidate  over  590,000  votes. 
But  in  the  case  of  both  these  parties,  though  they  pref- 
ace their  platforms  with  general  statements  in  favor  of 
the  nationaUzation  of  production,  special  stress  is  laid 
on  the  immediate  demands  for  state  railroads,  municipal 
control  of  lighting  plants  and  street  cars,  a  graduated 
income  tax,  etc.  They  thus  illustrate  in  their  practical 
programme  a  very  close  similarity  with  radical  pohtical 
parties  whose  basis  is  not  socialistic.  The  present  de- 
mands of  sociaUst  parties  both  in  America  and  in  Europe 
are  very  closely  allied  to  those  that  are  and  have  been 

1  Consult  in  this  connection  Charlea  Nordhoff,  The  Communisiic 
Societies  of  the  United  Slatee, 


880         THE  PROVINCE  OF  GOVERNMENT 

advanced  by  various  parties  of  a  radical  type  (Populist, 
Independent  Labor,  French  Radicals,  etc.)  which  are 
not  avowedly  socialist  at  aU.  The  fundamental  basis 
of  radicalism  is  individualistic  and  hence  represents  in 
theory  the  opposing  extreme  from  the  socialistic  con- 
ception of  the  state.  But  the  progressive  evolution  of 
modem  sociahsm  is  carrying  it  fm-ther  and  further  from 
its  original  ideal.  The  latter  many  socialists  admit  to 
be  Utopian  and  unattainable,  and  many  persons  not 
sociaHsts  would  concede  that  the  theoretical  ideal  of  a 
cooperative  commonwealth  may  exercise  a  formative 
influence  on  the  direction  of  actual  legislation.  The  aims 
of  the  socialists  in  connection  with  municipal  govern- 
ment we  shall  discuss  in  the  next  chapter. 

READINGS  SUGGESTED 

Kirkup,  T.,  History  of  Socialism  (1892),  chaps,  i,  vn,  xn. 
Skelton,  0.,  Socialism,  a  Critical  Analysis  (1911),  chap.  n. 
SchaflBe,  A.,  Quintessence  of  Socialism  (translation  of  8th  Ger- 
man edition,  1889). 

FURTHER  AUTHORITIES 

Bliss,  W.  D.  P.,  Handbook  of  Socialism. 

Bellamy,  E.,  Looking  Backward  (1888). 

Marx,  K.,  Capital  (1867). 

Webb,  S.  and  B.,  History  of  Trade-Unionism. 

Nordhoff,  C.,  Communistic  Societies  of  the  United  States  (1878). 

Pohlmann,  R,,  GeschicJUe  des  antiken  Kommunismus  und 

Sozialismua  (1893). 
SchaflBe,  A.,  Impossibility  of  Social  Democracy  (authorized 

English  edition,  1892). 
Zenker,  E.  V.,  Anarchism  (1897). 

Leacock,  Stephen,  The  Unsobed  Riddle  of  SocialJustice  (1919). 
Hughes,  J.  W.,  American  Socialism  of  the  Present  Day  (1912). 
Walling,  W.  E.,  et  al.  (editors),  The  Socialism  of  To-day  (1916). 
Barker,  J.  Ellis,  British  Socialism  (1908). 


CHAPTER  m 
THE  MODERN  STATE 

1.  The  new  environment  —  2.  Theory  of  protection  to  industry  —  8. 
Modern  protective  tariflfs  —  4.  Interference  with  competitive  prices; 
trust  and  railroad  legislation  —  6.  Government  interference  on 
behalf  of  the  working  class;  factory  laws,  state  insurance,  and 
pensions  —  6.  Municipal  control. 

1.  The  new  environment.  We  shall  now  consider 
in  conclusion  the  actual  functions  exercised  by  modem 
governments  and  the  existing  state  of  opinion  in  refer- 
ence to  the  economic  duties  of  the  state.  The  practical 
operation  of  all  modern  civihzed  governments  remains, 
in  a  certain  sense,  on  an  individualistic  basis.  By  this 
is  meant  that  there  is  no  state  in  which  the  principle 
of  common  property  in  the  means  of  production,  or  of 
equality  of  wages,  or  of  universal  employment  by  the 
government,  is  adopted.  Each  individual  is  still  left 
to  earn  his  own  living  by  his  own  efforts,  and  the  amount 
of  wages  remains  as  a  matter  of  free  contract  between 
employers  and  employed.  But  subject  to  this  general 
reservation,  it  can  easily  be  shown  that  the  practice  of 
modern  governments  is  further  than  ever  removed  from 
complete  individualism,  and  that  the  tendency  towards 
state  interference  with  industry  is  everjrwhere  on  the  in- 
crease. We  have  but  to  consider  the  public  policy  of  our 
time  in  reference  to  the  regulation  of  railroads,  of  mo- 
nopoUes  and  tariffs,  to  realize  that  the  former  reUance 
upon  the  principle  of  unrestricted  competition  and  indi- 
vidual self-interest  has  been  completely  lost.  This  obvi- 
ous change  in  public  policy  has  been  accompanied  by  an 
equally  evident  change  in  pubUc  opinion.    The  econo- 


382         THE  PROVINCE  OF  GOVERNMENT 

mists  and  political  philosophers  of  the  present  time  are 
prepared  to  defend  a  degree  of  state  interference  quite 
at  variance  with  the  doctrines  of  their  predecessors. 
The  reason  for  this  remarkable  alteration  both  in  theory 
and  practice  is  found  in  the  altered  circumstances  of  our 
industrial  environment.  We  have  seen  in  a  previous 
chapter  that  the  rapid  expansion  of  industry  under  the 
stimulus  of  the  new  mechanical  processes  of  the  indus- 
trial revolution  seemed  to  demand  its  liberation  from 
all  forms  of  governmental  restraint,  and  that  the  conse- 
quent removal  of  the  standing  impediments  to  the  free 
movement  of  capital  and  labor  was  accompanied,  at  any 
rate  as  far  as  the  total  volume  of  production  was  con- 
cerned, with  marked  success.  But  it  has  been  seen  also 
that  in  reference  to  the  welfare  of  the  laboring  class  the 
system  of  free  competition,  particularly  in  regard  to  the 
work  of  women  and  children,  was  open  to  serious  objec- 
tion. The  further  development  of  modern  industry  has 
emphasized  many  other  disadvantages  attendant  upwn 
unrestricted  competition.  The  more  important  of  these 
may  be  briefly  discussed  in  theoretical  form,  after  which 
we  shall  proceed  to  the  treatment  of  the  actual  legisla- 
tive poUcy  adopted  imder  the  circumstances. 

The  theory  of  government  functions  laid  down  by 
Smith,  Ricardo,  and  the  classical  economists  was  es- 
sentially a  cosmopoUtan  theory.  It  was  intended  to 
show  that  if  wages,  prices,  and  trade  were  left  to  the 
free  play  of  individual  bargaining,  the  self-interest  of 
each  would  promote  the  general  interest  of  all.  Each 
individual  would  be  enabled  to  apply  his  labor  and  his 
capital  to  the  particular  branch  of  industry  in  which  he 
might  expect  the  highest  remuneration.  In  the  same 
way  each  nation  would  be  enabled  to  concentrate  its 
production  in  the  directions  for  which  it  had  the  great- 


THE  MODERN  STATE  383 

est  natural  advantages,  an  unrestricted  trade  with  its 
fellow  nations  supplying  the  commodities  not  produced 
at  home.  As  applied  to  the  conditions  prevalent  in  Eng- 
land in  Ricardo's  day,  the  theory  of  international  rela- 
tions is  generally  admitted  to  have  been  correct.  There 
could  be  no  doubt  as  to  England's  paramount  advan- 
tages at  that  time  in  nearly  all  lines  of  manufacturing 
industry.  But  the  attempt  to  apply  the  free-trade 
theory  to  other  nations  and  to  later  times  has  by  no 
means  met  with  a  general  acceptance.  In  the  first  place 
it  is  objected  that  the  acceptance  of  the  policy  of  free 
trade  militates  against  national  self-sufficiency  and 
independence.  In  strict  accord  with  the  Ricardian 
doctrine  it  will  follow  that  if  a  nation  has  especial  ad- 
vantages for  agriculture  and  relatively  poor  facilities 
for  manufacture,  it  will,  apart  from  government  inter- 
ference with  the  "natural"  course  of  things,  rely  upon 
its  neighbors  for  manufactured  articles,  and  devote  its 
energies  mainly  to  agriculture.  Conversely  a  nation 
with  special  facihties  for  manufacture,  but  poor  in  agri- 
cultural resources,  will  be  led  to  leave  its  land  untilled 
and  to  obtain  its  food-supply  by  exchanging  its  manu- 
factured articles  for  agricultural  products.  It  is  clear 
that  in  these  cases  the  welfare  of  each  nation  is  abso- 
lutely dependent  on  its  being  able  to  carry  on  an  unin- 
terrupted trade  for  the  supply  of  its  particular  needs. 
Should  such  intercourse  be  interrupted  by  war,  either 
between  itself  and  the  nation  it  trades  with  or  be- 
tween the  latter  and  an  outside  power,  its  economic 
existence  is  at  stake.  The  economic  gain  afforded  by 
its  trade  in  time  of  peace  is  thus  offset  by  its  economic 
feebleness  in  time  of  war.  It  is  to  be  especially  observed 
that  it  is  not  only  a  war  of  its  own  that  it  must  appre- 
hend, but  a  war  undertaken  by  an  outside  nation  on 


384        THE  PROVINCE  OF  GOVERNMENT 

which  it  is  in  some  degree  economically  dependent.  On 
this  groimd  it  is  argued  that  state  interference  in  the 
shape  of  protection  to  manufactures  (or  to  agriculture) 
is  justified  in  so  far  as  may  be  needed  for  establishing 
a  proper  quantity  of  economic  independence.  Even 
Adam  Smith  in  his  approval  of  the  Navigation  Acts  ^ 
admits  the  validity  of  considerations  of  a  similar  char- 
acter, and  the  argument  is  generally  admitted  by  pres- 
ent economists  to  be  of  weight.  There  is  a  consider- 
able divergence  of  opinion  as  to  the  extent  to  which 
economic  independence  should  be  attempted.  It  is, 
however,  universally  admitted  that  for  the  manufacture 
of  the  mimitions  of  war  no  state  should  permit  itself 
to  be  dependent  on  the  outside  world. 

2.  Theory  of  protection  to  industry.  The  foregoing 
is  only  one  of  the  many  grounds  on  which  state  inter- 
ference in  the  form  of  protective  duties  has  been  ad- 
vocated. More  familiar,  especially  in  America,  is  the 
line  of  reasoning  known  as  the  "infant-industry"  argu- 
ment. It  is  claimed  that  the  resources  and  circum- 
stances of  a  country  may  be  such  that  while  the  initial 
expense  of  setting  a  manufactm-ing  system  on  foot  in 
the  face  of  foreign  competition  offers  insuperable  diffi- 
culties for  the  industrial  producer,  yet  such  a  system 
once  properly  established  would  be  of  a  sufficiently 
profitable  character  to  compete  on  equal  terms  with  the 
imports  of  foreign  manufactures.  In  this  case,  it  is  urged, 
the  government  should  impose  a  temporary  duty  which 
may  make  it  possible  for  manufactures  to  be  established, 
and  which  may  later  on  be  removed.  The  temporary 
help  thus  afforded  by  state  interference  will  enable  the 
community  to  advance  to  a  higher  stage  of  industrialism, 
and  better  to  exploit  the  natural  resources  of  its  terri- 

*  Wealth  of  Nations,  bk.  iv. 


THE  MODERN  STATE  385 

tory.  This  argument  has  met  with  especial  support 
from  American  economists.  The  weak  point  in  connec- 
tion with  the  infant-industry  argument  is  that  in  coun- 
tries where  duties  of  this  kind  have  been  adopted,  the 
industries  in  question  have  never  outgrown  their  infancy, 
as  far  as  the  protective  tariff  is  concerned.  In  practice 
the  duties  have  not  only  not  been  removed,  but  have 
been  increased. 

A  further  ground  of  argument  in  favor  of  protec- 
tive interference  arises  out  of  the  cosmopoUtan  charac- 
ter of  the  free-trade  doctrine.  Assuming  a  complete  in- 
ternational regime  of  free  trade,  the  system  might  tend 
towards  the  denudation  and  impoverishment  of  the  less 
favored  nations  in  favor  of  those  possessing  the  great- 
est resources  and  offering  the  best  conditions  for  man- 
ufacture. The  Ricardian  theory  presupposes  that  each 
nation  will  occupy  itself  with  the  pursuits  for  which  its 
circumstances  are  best  suited.  It  is  admitted  ^  that  one 
nation  may  be  worse  suited  in  every  respect  than  an- 
other and  yet  continue  to  trade  with  it,  because  the 
people  of  the  most  favored  nation  will  prefer  to  devote 
themselves  to  the  occupation  in  which  their  advantage 
is  greatest.  Thus  let  us  suppose  that  Portugal  can  pro- 
duce both  wine  and  corn  with  less  labor  than  Morocco; 
and  let  it  also  be  supposed  that  in  the  production  of 
corn  the  advantage  is  but  slight,  whereas  in  the  case  of 
wine  the  advantage  is  enormous;  the  people  of  Portu- 
gal will  still  prefer  to  get  their  corn  from  Morocco,  al- 
though produced  there  at  greater  pains  than  in  Portu- 
gal, because  the  quantity  of  wine  they  exchange  for  it 
is  produced  at  still  less  cost.  On  this  ground  the  clas- 
sical economists  undertook  to  show  that  two  nations 

I  See  John  Stuart  Mill,  Principles  of  Political  Economy,  bk.  m, 
chaps,  zvii,  zyni. 


38«         THE  PROVINCE  OF  GO\^ERNMENT 

might  trade  with  mutual  advantage  even  where  the  re- 
sources of  the  one  were  superior  in  every  respect  to 
those  of  the  other.  Such  an  argument,  however,  takes  it 
for  granted  that  the  capital  and  labor  of  each  country  ♦ 
will  remain  within  its  own  borders,  and  not  emigrate  to 
the  more  favored  territory.  Why  should  it  not  be  sup- 
posed that  with  free  intercourse  and  open  markets,  the 
capital,  and  what  is  far  more  important,  the  laborers 
of  less  favored  communities  would  emigrate  to  places 
better  suited  for  manufacture?  It  will  be  noted  that 
this  supposed  denudation  of  poorer  countries  contains 
nothing  at  variance  with  the  free-trade  theory  itself. 
The  emigration  of  persons  and  capital  under  these  cir- 
cumstances would  doubtless  increase  the  gross  total  of 
the  world's  production,  and  would  add  something  to  the 
general  productive  efficiency  of  mankind.  But  it  would 
assuredly  not  increase  the  gross  total  of  the  productive- 
ness of  the  country  out  of  which  they  emigrated.  The 
question  then  is,  whether  the  adoption  of  protective 
duties  in  aid  of  home  manufacture  can  prevent  the  de- 
sertion of  poorer  for  richer  countries.  It  may  be  argued 
that,  even  after  the  duties  are  imposed,  the  individual 
capitalist  or  laborer  will  still  find  it  more  profitable  to 
use  his  capital  and  labor  in  the  more  favored  country, 
and  that  the  tendency  to  emigration  of  both  of  these 
is  independent  of  protective  interference.  There  are, 
however,  a  great  many  people  in  every  country  whose 
remaining  there  is  not  altogether  a  matter  governed  by 
economic  motives;  some  will  remain  from  sentimental 
reasons  of  attachment  and  patriotism,  others^  because 
their  material  fortunes  are  already  amply  sufficient. 
Under  a  protective  system  the  manufactured  commod- 
ities consumed  by  these  persons  must  needs  be  made 
at  home  and  necessitate  the  continuing  within  the  state 


THE  MODERN  STATE  387 

of  a  sufficient  manufacturing  population  for  the  pur- 
pose. Such  manufacture  will,  under  these  premises,  be 
conducted  at  an  economic  loss:  the  persons  of  means 
thus  residing  in  the  country  will  have  to  pay  more  for 
what  they  consume  than  if  content  to  import  it  from 
abroad  and  to  let  the  manufacturing  population  depart. 
But  the  upshot  will  be  that  a  larger  number  of  citizens 
remain  within  the  state  than  would  have  remained 
without  the  state  interference  in  the  form  of  protective 
duties.  It  is  plain,  of  course,  that  the  applicability  of 
such  an  argument  depends  on  the  particular  circum- 
stances of  any  country  at  any  time.  The  situation  of 
Great  Britain  at  the  present  time  naturally  suggests  it- 
self for  examination  in  this  connection.  It  may  conceiv- 
ably be  the  case  that  the  facilities  both  for  agriculture 
and  for  manufacture  are  now  inferior  in  Great  Britain 
to  those  of  the  United  States.  The  progressive  appli- 
cation of  water  power  and  electricity  as  motive  forces 
may  fiui:-her  emphasize  this  advantage.  Under  such 
circumstances  according  to  the  Ricardian  doctrine  the 
laboring  people  of  England  ought,  each  consulting  his 
own  advantage,  to  come  to  hve  in  the  United  States. 
There  would  remain  in  England  the  persons  of  means, 
who  would  invest  their  capital  in  the  manufacturing 
industries  of  America,  and  draw  from  that  continent 
the  various  conmiodities  of  their  consumption.  The 
case  is  purely  hypothetical  and  may  be  perfectly  at  vari- 
ance with  present  facts.  But  it  seems  to  show  that,  in 
pure  theory,  the  system  of  free  trade  is  not  of  necessity 
identical  with  national  greatness.  To  grant  this  and  to 
contend  that  it  is  always  consistent  with  the  general 
welfare  of  the  world,  even  where  fatal  to  the  welfare  of 
a  particular  nation  as  such,  would  be  thought  by  many 
a  quite  insufficient  argument. 


388         THE  PROVINCE  OF  GOVERNMENT 

3.  Modem  protective  tariffs.  Acting  on  the  general 
considerations  thus  stated,  almost  all  of  the  modern  in- 
dustrial states  have  seen  fit  to  adopt  a  system  of  protec- 
tive duties  for  the  promotion  of  domestic  manufacture. 
Such  legislation  in  the  United  States  was  indeed  adopted 
in  a  mild  form  at  the  very  opening  of  the  history  of  the 
present  Constitution.^  During  the  first  half  of  the  nine- 
teenth century,  the  rival  theories  of  free  trade  and  pro- 
tection struggled  for  mastery.  The  high  tariff  of  1828, 
the  "tariff  of  abominations,"  was  followed  by  the 
greatly  reduced  tariff  of  1846 — a  measure  partly  due  to 
the  influence  of  the  free-trade  campaign  in  England,  — 
and  by  the  reciprocity  treaty  with  Canada  in  1854.  But 
since  the  Civil  War  the  system  of  protection  to  national 
industries  has  been  strengthened,  and  extended  to  prac- 
tically the  whole  range  of  industry.  The  Dingley  tariff 
of  1897,  while  admitting  free  of  duties  a  large  number 
of  raw  materials  for  use  in  manufacture,  imposed  on 
manufactured  articles  duties  amounting  in  some  cases 
to  more  than  fifty  per  cent.  Indeed  the  period  between 
1890  and  1900  may  be  considered  to  have  witnessed  the 
acceptation  in  the  United  States  of  the  protective  sys- 
tem, not  as  an  expedient,  but  as  a  principle.  Subsequent 
revisions  of  the  tariff,  while  lowering  and  removing  va- 
rious duties,  have  left  this  principle  untouched.  The 
Dominion  of  Canada,  though  granting  a  special  rebate 
duty  to  imports  from  Great  Britain,  is  now  on  a  high- 
tariff  basis,  the  policy  of  protection  having  been  expUc- 
itly  adopted  by  the  Conservative  Party  in  1878,  and 
transmitted  to  their  opponents  on  their  accession  to 
power  in  1896.  The  German  Empire,  with  the  tariff  of 
1879,  adopted  the  poHcy  of  protection,  in  especial  the 

>  See  Schouler,  History  of  the  United  States,  vol.  i;  Taussig,  Tariff 
History  0/  the  United  States. 


THE  MODERN  STATE  389 

tariff  of  1902  having  further  raised  the  existing  duties, 
including  those  on  agricultural  products.^  France,  Italy, 
and  the  other  Continental  countries  are  also  under  a 
system  of  tariff  protection.  Of  the  manufacturing  coun- 
tries of  the  world.  Great  Britain  alone  remains  upon  a 
free-trade  basis,  while  even  there  the  future  retention  of 
such  a  system  has  recently  become  a  subject  of  acute 
controversy. 

4.  Interference  with  competitive  prices;  trust  and 
railroad  legislation.  Interference  with  the  freedom  of 
importation  is  only  one  instance  of  the  present  tendency 
towards  legislation  in  contravention  of  the  formerly 
dominant  theory  of  natural  Uberty.  We  have  aheady 
seen  that  in  accordance  with  this  system  it  was  consid- 
ered advisable  that  prices  should  be  left  altogether  to 
the  play  of  free  competition  among  buyers  and  sellers. 
It  was  presumed  that  under  a  regime  of  unrestricted 
competition,  the  price  of  any  article  would  be  in  propor- 
tion to  the  cost  of  producing  it.  For  the  attainment  of 
the  maximum  economic  efficiency,  and  for  the  satisfac- 
tion of  the  demands  of  social  justice,  it  seemed  necessary 
merely  to  leave  people  alone  to  buy  and  sell  as  they 
pleased  at  such  prices  as  they  should  arrange  between 
themselves.  The  essence  of  the  position,  however,  lay  in 
the  assumption  that  there  would  be  active  competition 
among  a  number  of  persons  producing  the  same  article. 
The  case  is  altered  if  we  suppose  the  entire  stock  of  any 
particular  commodity  in  the  hands  of  a  single  seller,  or, 
what  is  the  same  thing,  in  the  hands  of  a  group  of  sellers 
acting  in  concert.  Where  a  person  has  a  monopoly  of 
the  available  stock  of  a  commodity,  there  is  no  reason, 
in  and  of  itself,  why  he  should  sell  it  at  a  price  represent- 
ing the  cost  of  production,  rather  than  at  any  other 
>  See  W.  H.  DawBon,  Protection  in  Germany,  chap.  ix. 


390         THE  PROVINCE  OF  GOVERNMENT 

price.  He  is  free  to  ask  any  price  that  he  likes,  subject 
always  to  the  consideration  that  if  he  asks  too  high  a 
price  no  one  will  buy  the  article  he  wishes  to  sell.  When 
we  come  to  inquire  how  prices  will  in  such  a  case  be  set- 
tled, we  find  that  a  monopoly  price  follows  a  law  quite 
different  from  that  governing  prices  under  free  compe- 
tition.^ The  adjustment  of  a  monopoly  price  may  be 
explained  as  follows.  The  seller  obviously  cannot  sell 
below  the  cost  of  production,  because  that  would  entail 
a  direct  loss.  He  must,  therefore,  sell  at  a  price  some- 
where above  the  cost  of  production.  But  it  is  clear  that 
the  lower  the  price  the  greater  will  be  the  number  of 
articles  that  he  sells.  The  whole  amount  of  his  profit 
will  depend,  therefore,  on  two  factors,  the  total  number 
of  sales  and  the  amount  of  profit  on  each  sale.  As  the 
price  rises  the  number  of  buyers  decreases,  though  prob- 
ably not  in  a  regular  progression,  but  irregularly  and  in  a 
jolting  fashion.  There  will  be  found  somewhere  in  the 
upward  scale  a  point  of  maximum  profit,  at  which  the 
product  of  the  number  of  sales  multiphed  by  the  profit 
on  each  is  greater  than  at  any  other  point.  Now  this 
point  may  in  some  cases  be  far  above  the  cost  of  produc- 
tion :  for  example,  in  the  case  of  an  article  of  prime  ne- 
cessity, —  bread,  sugar,  oU,  etc.,  —  any  one  having  a 
complete  monopoly  of  the  available  stock  could  exact 
a  price  much  in  excess  of  the  actual  cost  of  production. 
In  the  economic  situation  of  the  earUer  part  of  the 
nineteenth  century,  the  monopolization  of  articles  of 
ordinary  production  had  not  appeared  to  any  great 
extent.  The  law  of  price  appljdng  to  these  conditions, 
though  apprehended  by  the  economists  of  the  day,  as- 
sumed no  particular  importance,  nor  did  it  seem  to  have 

1.  For  the  law  of  monopoly  price,  see  R.  T.  Ely,  Monopolies  and 
Tnuta. 


THE  MODERN  STATE  391 

any  immediate  bearing  on  public  policy.  But  in  oiu*  own 
day  the  possibility  of  monopolization  of  ordinary  arti- 
cles of  production  has  become  a  significant  factor  in  the 
industrial  situation.  To  this,  various  causes  have  con- 
tributed. The  increasing  use  of  machinery  renders  the 
initial  cost  of  embarking  on  any  industrial  process  con- 
stantly greater.  The  evolution  of  the  principle  of  joint- 
stock  undertakings  has  rendered  it  possible  to  carry  on 
production  on  a  very  large  scale,  and  in  consequence  to 
considerably  reduce  the  cost  of  each  article  produced. 
This  has  rendered  it  very  diflficult  for  small  concerns 
to  compete  with  large  industrial  corporations,  and  has 
set  up  in  the  industrial  world  a  tendency  towards  the 
amalgamation  of  similar  businesses  under  a  common 
management.  When  this  amalgamation  has  proceeded 
far  enough  to  cover,  or  at  any  rate  to  dominate,  the 
whole  production  of  a  certain  class  of  commodities,  then 
the  principle  of  competitive  price-making  no  longer  ap- 
plies, and  the  law  of  monopoly  price  comes  into  play.  To 
prevent  this  state  of  things  modem  governments  have 
seen  fit  in  some  instances  to  use  their  legislative  power. 
This  is  particularly  the  case  with  the  United  States, 
where  the  process  of  industrial  amalgamation  has  been 
most  rapid  and  has  occasioned  the  greatest  pubUc  ap- 
prehension. The  federal  government  in  1890  passed  an 
anti-trust  law  (known  as  the  Sherman  Act)  forbidding 
contracts  or  combinations  in  restraint  of  interstate  trade, 
prohibiting  the  monopolizing  of  any  part  of  the  trade 
between  the  states,  etc.  The  effect  of  this  statute  has 
been  reenforced  by  the  interpretation  given  to  it  by  the 
courts.  It  was  applied  in  1897  to  contracts  between  rail- 
roads in  interstate  commerce;  in  1904  (Northern  Securi- 
ties Case)  to  the  prohibition  of  certain  forms  of  corporate 
amalgamation,  and  in  1908  to  a  boycott  ordered  by  a 


392         THE  PROVINCE  OF  GOVERNMENT 

labor  union.  ^  Under  an  Act  of  1914  a  Federal  Trade 
Commission  was  created  with  power  to  restrain  unfair 
methods  of  competition.  Most  of  the  States  have  legis- 
lated against  the  trusts,  either  by  constitutional  provi- 
sions or  by  statutes.  A  great  deal  of  such  legislation  has, 
however,  been  declared  invalid  by  the  courts,  or  ren- 
dered inoperative  by  various  kinds  of  evasion.'^ 

A  special  case  of  the  interference  of  the  modem  state 
in  regard  to  prices  is  seen  in  legislation  concerning  rail- 
road rates,  which  are  of  course  prices  charged  for  trans- 
portation of  persons  and  freight.  A  httle  examination 
will  show  that  railroad  rates  differ  from  most  other 
prices  in  a  very  peculiar  way.  We  have  seen  that  under 
free  competition  in  the  production  of  ordinary  commodi- 
ties their  seUing  price  will  approximate  to  the  cost  of 
production.  Even  where  a  single  seller  has  a  monopoly 
he  will  find  no  advantage  in  making  sales  below  the  cost 
of  production.  But  in  the  case  of  a  service  performed  by 
a  railroad  in  transporting  passengers  or  freight  over  a 
certain  distance  the  "cost  of  production"  is  of  a  quite 
different  character,  and  stands  in  a  quite  different  rela- 
tion to  the  price  demanded.  In  the  first  place  we  can  see 
that  there  is  very  little,  almost  no  expense  incurred  by 
the  railroad  for  the  particular  transportation  of  any 
single  article.  Supposing  that  a  train  is  scheduled  to  run 
between  two  stations,  ten  miles  apart,  the  cost  of  send- 
ing a  barrel  of  flour  on  it  (the  additional  expense,  that 
is,  actually  incurred  by  taking  that  particular  consign- 
ment) consists  merely  of  the  labor  of  two  or  three  min- 
utes' handling  and  an  infinitesimal  quantity  of  extra 
coal  by  reason  of  the  extra  weight  added  to  the  train. 

»  See  Everett  Kimball,  The  National  OovemmerU  of  the  United 
States,  pp.  505-10. 

*  For  anti-trust  statutes,  see  Report  of  the  U.S.  IndustricU  Commit- 
tion,  vol.  n. 


THE  MODERN  STATE  39i* 

It  must  be  noted  in  the  second  place  that  as  between  a 
distance  of  ten  miles  and  a  distance  of  one  hundred  miles 
the  cost  is  practically  the  same,  for  only  the  same 
amount  of  handling  is  needed,  and  the  other  expense  is 
insignificantly  small.  There  is  of  course  the  expense  of 
running  the  train  itself  (coal,  wages,  etc.).  Very  obvi- 
ously some  of  the  prices  charged  for  the  passengers  and 
freight  it  carries  must  make  this  good  or  the  train  is  be- 
ing run  at  a  loss.  But  there  is  no  reason  (none,  that  is, 
of  an  economic  charactei:,  and  apart  from  ideas  of  senti- 
ment, justice,  etc.)  why  this  charge  should  be  levied  in  a 
proportionate  manner  upon  the  different  consignments. 
Suppose,  for  example,  that  the  state  of  the  cotton  trade 
is  such  that  consignments  of  cotton  will  be  sent  even  if 
the  railroad  charges  a  high  price,  and  that  the  market 
for  flour  is  such  that  no  flour  will  be  shipped  except  at  a 
rate  excessively  low,  it  will  clearly  be  to  the  advantage 
of  the  railroad  to  charge  much  for  the  one  and  little  for 
the  other.  In  other  words  each  of  these  two  rates  will  be 
of  the  nature  of  a  monopoly  price,  the  limitation  of  the 
charge  being  found  in  that  above  a  certain  point  the 
number  of  consignments  begins  to  fall  off.  Over  and 
above  the  special  expenses  of  running  this  individual 
train  the  railroad  has  to  meet  its  permanent  and  stand- 
ing expenses  in  the  shape  of  the  interest  charge  upon  its 
original  construction,  and  the  cost  of  maintaining  the 
roadbed  and  terminals.  But  there  is  no  reason  to  assign 
these  charges  proportionately  and  uniformly  among  all 
the  trains  operated,  and  upon  all  the  business  handled. 
Each  train  and  each  consignment  must  of  course  repay 
the  direct  added  cost  which  its  operation  entails.  But 
above  the  extremely  low  minimum  rate  thus  indicated, 
it  is  always  worth  while  to  accept  business,  even  for  a 
small  charge  where  a  larger  cannot  be  had.  In  the  prac- 


394         THE  PROVINCE  OF  GOVERNMENT 

tical  levy  of  railroad  rates  it  is  therefore  quite  out  of  the 
question  to  distribute  the  total  cost  in  a  proportionate 
manner.  Each  service  performed  will  be  sold  at  a  price 
representing  "what  the  trafl&c  will  bear"  and  not  what 
the  traffic  has  cost.  It  will  result  in  consequence  that  the 
different  charges  made  by  a  railroad  may  be  evidently 
and  visibly  out  of  proportion  to  their  relative  cost.  It 
may  happen  that  a  greater  charge  is  made  for  carrying  a 
particular  article  a  short  distance  than  for  carrying  it  a 
long  one.  Although  at  first  sight  this  seems  contrary  to 
common  sense  and  to  common  justice,  it  is  quite  in  keep- 
ing with  the  principles  we  have  just  laid  down.  In  trans- 
porting goods  between  two  places  five  hundred  miles 
apart  a  railroad  may  have  to  encounter  the  opposition 
of  competing  lines  or  of  transportation  by  water,  and 
may  be  compelled  to  accept  a  very  low  rate  on  the 
freight  it  carries.  But  at  the  same  time  there  may  very 
well  be  included  in  this  five  hundred  miles  a  strip  of  one 
hundred  miles  which  is  not  covered  by  any  competing 
railroad,  and  which  has  not  access  to  water  transporta- 
tion. As  between  the  towns  on  this  strip  the  charges 
that  the  "traffic  will  bear"  are  very  likely  greater  than 
the  utmost  charge  that  can  be  levied  on  the  through 
traffic  of  five  hundred  miles.  ^ 

There  is  a  further  pecuUarity  in  the  economic  situa- 
tion of  railroads  in  the  fact  that  active  and  permanent 
competition  between  them  is  practically  impossible.  A 
state  of  keen  competition  induces  the  roads  to  reduce 
charges  to  a  point  which,  while  covering  the  actual  and 
individual  cost  of  the  train  service,  makes  no  provision 
for  the  permanent  interest  and  maintenance  charges  of 
the  railway.  In  such  a  situation  a  poor  road  —  particu- 

>  For  the  theory  of  railroad  rates  see  E.  Johnson,  American  Railway 
TranaporUUion  (1903). 


THE  MODERN  STATE  395 

larly  one  whose  interest  charges  are  ab*eady  in  default, 
or  which  is  even  in  the  receiver's  hands  —  is  a  stronger 
competitor  than  a  good  one,  for  it  can  indulge  in  a  more 
reckless  and  suicidal  rate-cutting.  In  practice,  there- 
fore, railroads  have  always  found  themselves  compelled 
to  enter  into  agreements,  express  or  tacit,  as  to  the 
regulation  of  their  rates.  From  the  point  of  view  of  the 
general  public  such  understandings  look  very  much  Uke 
a  combined  attempt  on  the  part  of  the  roads  to  exploit 
the  community  for  their  own  benefit. 

The  distinctive  position  which  the  railroads  thus 
occupy  in  the  industrial  world  has  induced  all  modem 
governments  to  subject  them  to  special  regulation,  and 
to  entirely  abandon  in  reference  to  them  the  principle  of 
non-interference.  In  some  cases,  as  in  Prussia,  Austria, 
Hungary,  the  states  of  the  Commonwealth  of  Australia, 
etc.,  the  state  itself  owns  and  operates  the  railroads.  In 
France  charters  are  granted  to  private  companies  for 
limited  periods,  after  which  the  roads  revert  to  the 
state.  The  chief  railroad  systems  of  the  country  (some 
20,500  miles  of  road  out  of  a  total  25,500)  will  become 
national  property  between  the  years  1950  and  1960. 
Even  while  the  roads  are  in  private  hands  their  general 
relation  to  the  state  is  very  different  from  that  of  ordi- 
nary business  enterprises.  A  large  part  of  the  original 
permanent  cost  was  defrayed  by  the  French  Govern- 
ment; the  government  also  guaranteed  the  payment  of 
a  fixed  dividend.  In  return  the  rates  are  fixed  by  the 
government  itself,  and  the  transportation  of  the  mails, 
troops,  prisoners,  etc.,  is  made  gratuitous.  In  the 
United  States,  although  the  railroads  have  been  left  in 
private  hands,  they  have  been  the  object  of  special  legis- 
lative control  of  both  the  state  and  the  federal  govern- 
ments. The  Interstate  Commerce  Act  (1887)  provided 


896         THE  PROVINCE  OF  GOVERNMENT 

that  in  the  case  of  charges  levied  on  commerce  between 
the  States,  no  raih-oad  company  shall  unduly  discrimi- 
nate in  favor  of  particular  persons  or  particular  locali- 
ties. The  same  law  forbade  the  railroads  to  charge  more 
for  transportation  for  a  shorter  than  for  a  longer  dis- 
tance over  the  same  line,  and  prohibited  the  pooling  of 
railroad  earnings.  The  statute  also  estabUshed  an  Inter- 
state Commerce  Commission  of  five  members  appointed 
by  the  President  of  the  United  States;  it  is  the  duty  of 
this  body  to  supervise  the  operation  of  the  act,  but  it 
had  at  first  no  power  of  itself  to  punish  violations  of  its 
provisions  or  to  fix  rates.  A  law  of  1906  conferred  upon 
the  commission  the  power  to  prescribe  rates.  The  provi- 
sions of  the  federal  anti-trust  statute  of  1890  have  also 
been  applied  by  the  courts  against  the  railroads  in  re- 
gard to  various  forms  of  combination  that  were  pre- 
sumed to  be  in  restraint  of  conunerce  between  the 
States.  In  addition  to  the  national  legislation  most  of 
the  States  have  passed  laws  intended  to  prevent  dis- 
crimination in  freight  and  passenger  rates,  and  to  hinder 
undue  combination.  In  most  States  also  railroad  com- 
missions are  established,  in  some  cases  with  duties  that 
are  mainly  advisory  and  statistical,  but  in  others  with 
coercive  powers  for  the  making  and  enforcing  of  rates.* 
During  the  war  period  the  railroads  of  the  United 
States  were  taken  under  the  direct  administration  of  the 
government.  But  this  represents  merely  an  exigency  of 
war  and  not  a  change  in  the  basis  of  state  pwlicy.  In 
the  United  Kingdom  there  is  also  a  commission  for  the 
supervision  of  the  operation  of  railroads,  established  in 
1873,  and  rendered  permanent  by  an  act  of  Parliament 

i  It  has  been  laid  down  by  the  United  States  Supreme  Court  that 
an  exercise  of  power  of  this  kind  —  the  making  of  a  rate  by  the  come 
mission  itself  —  must  be  subject  to  revision  in  the  courts. 


THE  MODERN  STATE  397 

of  1888.  The  schedule  of  maximum  rates  of  each  rail- 
road is  subject  to  the  approval  of  the  Board  of  Trade. 
Pooling  is  not  prohibited,  but  discrimination  is  against 
the  law.  The  war-time  management  of  the  roads  by  the 
government  rested  on  the  same  principles  as  that  of  the 
United  States. 

5.  Government  interference  on  behalf  of  the  work- 
ing class;  factory  laws,  state  insurance,  and  pensions. 
The  attitude  of  modern  governments  towards  the  labor- 
ing class  is  in  many  respects  no  longer  one  of  unqualified 
individualism.  The  general  recognition  of  the  idea  of 
social  solidarity  and  of  aggregate  social  duties  towards 
the  workers  and  the  poorer  members  of  the  community 
has  profoundly  influenced  the  legislation  of  our  day. 
The  original  factory  acts  adopted  in  England,  to  which 
reference  has  been  already  made,  have  been  imitated 
in  all  the  great  industrial  countries,  and  expanded  into 
an  elaborate  code  designed  to  protect  the  wage-earner 
against  the  rigor  of  unrestrained  competition.  Legisla- 
tion of  this  kind  in  the  United  States  falls  under  state 
and  not  under  federal  jurisdiction.  There  were  still 
States  of  the  Union  in  which,  at  the  close  of  the  nine- 
teenth century  factory  industry  being  but  httle  de- 
veloped, no  protective  statutes  had  been  passed.  But 
in  Massachusetts,  New  York,  Pennsylvania,  Ohio,  In- 
diana, Illinois,  and  all  the  great  manufacturing  States, 
factory  legislation  of  a  thoroughgoing  character  has 
long  since  been  adopted,  and  their  example  has  now 
been  followed  to  a  greater  or  less  degree  throughout 
the  country.  The  factory  acts  prohibit  working  people 
from  being  employed  under  conditions  dangerous  to 
health  or  life.  They  contain  provisions  for  fire-escapes, 
prevention  of  explosions,  fencing  of  machinery,  ventila- 
tion, etc.,  and  provide  for  the  appointment  of  inspectors 


d98         THE  PROVINCE  OF  GOVERNMENT 

to  supervise  the  operation  of  the  acts.  The  hours  of  la- 
bor in  the  case  of  women  and  young  persons  are  also 
limited  by  law.  All  the  manufacturing  States  have  leg- 
islated against  excessive  hours  for  young  persons  (of 
either  sex)  and  have  absolutely  prohibited  factory  labor 
for  children.  In  Massachusetts,  New  York,  and  several 
other  States  only  children  of  at  least  fourteen  years  of 
age  may  be  employed;  in  other  States  employment  is 
permissible  at  lower  ages.  In  England,  under  the  gen- 
eral factory  law  of  1901,  similar  restrictions  on  industrial 
freedom  of  contract  are  imposed  by  the  government, 
both  the  conditions  of  work  and  the  permissible  hours 
for  employment  of  women,  young  persons,  and  children 
being  made  the  subject  of  legislative  interference.  The 
German  Imperial  Government  adopted  in  1891  a  factory 
act  of  similar  scope.  In  the  period  before  the  Great  War 
neither  in  Great  Britain  nor  the  United  States  was  any 
attempt  made  to  limit  by  legislation  the  hours  of  work 
of  adult  male  laborers.  But  at  the  present  time  the  stat- 
utory regulation  of  hours  in  general  is  quite  within  the 
scope  of  legislation.  The  matter  is  now  rather  one  of 
expediency  than  of  principle. 

The  general  tendency  of  the  advanced  opinion  of  the 
day  may  be  seen  in  the  "Labor  Sections"  of  the  Peace 
Treaty  of  1919.  The  preamble  of  the  opening  sections 
states  that  "The  League  of  Nations  has  for  its  object 
the  estabhshment  of  universal  peace,  and  such  a  peace 
can  be  established  only  if  based  upon  social  justice"; 
and  goes  on  to  declare  that  "conditions  of  labor  exist 
involving  such  injustice,  hardship,  and  privation  to 
large  numbers  of  people  as  to  produce  unrest  so  great 
that  the  peace  and  harmony  of  the  world  are  imperiled; 
and  an  improvement  of  those  conditions  is  urgently 
required;  as,  for  example,  by  the  regulation  of  the  hours 


THE  MODERN  STATE  399 

of  work,  including  the  establishment  of  a  maximum 
working  day  and  week,  the  regulation  of  the  labor  sup- 
ply, the  prevention  of  unemployment,  the  provision  of 
an  adequate  living  wage,  the  protection  of  the  worker 
against  sickness,  disease,  and  injury  arising  out  of  his 
employment,  the  protection  of  children,  young  persons, 
and  women,  provisions  for  old  age  and  injury,  protection 
of  the  interests  of  workers  when  employed  in  countries 
other  than  their  own,  recognition  of  the  principle  of 
freedom  of  association,  the  organization  of  vocational 
and  technical  education  and  other  measures."  A  later 
article  (427)  indicates  "  the  adoption  of  an  eight  hours* 
day  or  a  forty-eight  hours'  week  as  the  standard  to  be 
aimed  at  where  it  has  not  been  already  attained." 

The  altered  attitude  of  the  state  towards  the  working 
class  is  seen  also  in  the  systems  of  compulsory  insur- 
ance and  old-age  pensions,  now  operative  in  various 
countries  of  Europe,  and  in  certain  Australasian  colo- 
nies. The  system  was  first  adopted  on  a  comprehensive 
scale  in  Germany.  An  imperial  law  of  June  15,  1883, 
provided  for  compulsory  insurance  against  illness  for 
all  working  people  whose  wages  did  not  exceed  $476 
a  year,  the  expenses  of  the  insurance  being  imposed 
jointly  on  working  people  and  employers,  the  former  pay- 
ing two  thirds,  the  latter  one  third  of  the  cost.  A  simi- 
lar law  of  July  6, 1884,  prescribed  compulsory  insurance 
against  accidents.  In  each  of  these  cases  the  govern- 
ment itself  contributes  nothing;  but  for  the  compulsory 
old-age  pensions,  established  under  an  imperial  statute 
of  1889,  the  government  contributed  yearly  towards  each 
pension  a  fixed  sum  of  $1 1.90  over  and  above  the  amoimt 
accruing  from  the  past  contributions  of  the  workingmen 
and  their  employers.  France  and  Austria  have  also  in- 
stituted compulsory  state  insurance  against  accidents 


400         THE  PROVINCE  OF  GOVERNMENT 

(in  Austria  a^inst  illness  also),  and  Italy,  under  a 
statute  of  1899,  has  state  insurance  both  against  dis- 
ability and  old  age.  The  colony  of  New  Zealand,  by  a 
law  of  1898,  estabUshed  a  system  of  old-age  pensions 
(with  a  maximum  of  eighteen  poimds  per  annimi)  to 
be  accorded  by  the  government  to  persons  of  sixty-five 
years  of  age  who  have  resided  thirty-five  years  in  the 
colony,  no  previous  contribution  being  exacted  from 
the  recipient.  Persons  possessing  an  income  from  other 
sources  are  not  eHgible,  or  only  eUgible  as  pensioners 
to  the  extent  that  their  income  falls  short  of  the  pension. 
The  same  tyx)e  of  old-age  pension  law  was  adopted  in 
England  by  the  Acts  of  1908  and  1911,  imder  which 
non-contributory  pensions  with  a  maximum  of  five 
shillings  a  week  are  granted  to  all  needy  persons  over 
seventy  years  of  age.  This  was  followed  by  the  National 
Insurance  Act  of  1911  introducing  a  general  (contribu- 
tory) system  of  insurance  against  accident  and  illness. 

Even  the  most  extreme  individuahsts  admitted  that 
the  protection  which  it  was  the  primary  duty  of  the  state 
to  afford  to  the  citizen  did  not  merely  include  safeguards 
against  physical  violence  and  forcible  robbery.  Pro- 
tection of  an  indirect  character,  intended  to  prevent 
fraud  or  culpable  negligence,  was  admitted  to  be  within 
the  proper  sphere  of  the  state  action.  But  in  the  course 
of  the  nineteenth  century  the  category  of  legislation  of 
an  indirectly  protective  character  was  enormously  ex- 
panded. Such  famihar  examples  as  adulteration  acts  in 
reference  to  food,  acts  in  reference  to  the  inspection  of 
steamboats  and  buildings,  the  granting  of  certificates  to 
engineers,  druggists,  etc.,  will  at  once  suggest  themselves 
in  this  connection.  Prohibition  acts  in  restraint  of  the 
manufacture  or  sale  of  intoxicating  liquors,  acts  in  re- 
straint of  public  gambling,  etc.,  represent  the  same  legis- 


THE  MODERN  STATE  401 

lative  principle  carried  to  a  further  degree.  In  practice, 
the  Une  is  extremely  difficult  to  draw  between  protective 
legislation  —  whose  intention  is  to  guarantee  the  indi- 
vidual against  external  harm  and  to  prevent  him  from 
harming  others  —  and  paternal  legislation,  whose  object 
is  to  compel  him  in  a  positive  direction  for  his  own  good. 
The  attitude  of  most  modem  governments  is  not  clearly- 
defined  in  this  respect;  but  there  is  a  large  amount  of 
modem  legislation  which  is  practically  of  a  paternal 
character. 

6.  Municipal  control.  Mention  may  be  made  in  con- 
clusion of  the  wide  extension  of  state  activity  seen  in 
the  sphere  of  modern  municipal  control.  Under  pres- 
ent conditions  the  supply  of  water  and  light  to  towns 
and  cities  and  the  arrangement  for  intemrban  trans- 
portation, telephone  communications,  etc.,  offer  prob- 
lems of  a  peculiar  character.  To  a  great  extent  these 
services  are  in  their  nature  monopoUes;  they  must  be 
under  a  single  control,  and  cannot,  or  at  any  rate  can 
only  at  an  economic  loss,  be  performed  for  the  com- 
munity by  rival  purveyors.  Separate  telephone  systems, 
separate  gas  and  water  companies  with  parallel  pipes, 
separate  car  hnes  upon  the  same  streets,  are  plainly 
impracticable.  On  the  other  hand,  where  these  enter- 
prises are  placed  unreservedly  in  private  hands,  the 
principle  of  monopoly  price,  as  already  explained,  as- 
serts itseK  to  the  detriment  of  the  general  public.  It  is 
necessary,  therefore,  either  that  the  pubhc  authorities 
should  themselves  directly  perform  these  services  for 
the  community,  or  that  the  grant  of  privileges  accorded 
to  a  monopoly  company  should  be  accompanied  by  spe- 
cial restrictions  and  special  regulation  of  the  prices  to 
be  charged.  But  for  a  survey  of  the  present  extent  of 
municipal  ownership,  the  student  must  be  referred  to 


402         THE  PROVINCE  OF  GOVERNMENT 

special  works  upon  the  topic.  Reference  is  only  made 
to  it  in  this  connection  to  illustrate  the  greatly  widened 
sphere  of  state  control  characteristic  of  the  present  era. 

READINGS  SUGGESTED 

Leroy-Beaulieu,  P.,  The  Modem  State  (translation,  1891),  bks. 

I,  II. 
Hobson,  J.,  Evolution  of  Modem  Capitalism,  chaps,  m,  iv,  v. 
Jenks,  J.  W.,  The  Trust  Problem  (1901),  chaps,  rv,  x,  xi. 
Johnson,  E.,  American  Railway  Transportation  (2d  revised 

edition,  1919),  chap.  xxix. 
Barker,  E.,  Political  Thought  from  Spencer  to  Today  (1915), 

chap.  vm. 

FURTHER  AUTHORITIES 

Ripley,  W.  Z.,  Railroads  (1912). 

Ripley,  W.  Z.,  Trusts,  Pools,  and  Corporations  (rev.  ed.  1916). 

Von  Halle,  E.,  Trusts  (1900). 

Taussig,  F.  W.,  Tariff  History  of  the  United  States  (5th  edition, 
1901). 

Stevens,  W.  H.  S.,  Unfair  Competition  (1917). 

Ashley,  P.,  Mod£m  Tariff  History  (1904). 

Dawson,  W.  H.,  Protection  in  Germany  (1904). 

Ely,  R.  T.,  Monopolies  and  Trusts  (1900). 

Report  of  U.S.  Industrial  Commission  (1900-02). 

Bemis,  Municipal  Monopolies  (1899). 

Carey,  Municipal  Ovmership  of  Natural  Monopolies  (1900). 

Willoughby,  W.,  Workingmen's  Insurance  (1898). 

New  Zealand  Y ear-Book  (annual). 

Bulletin  of  U.S.  Bureau  of  Labor:  Government  Industrial  Arbi- 
tration (1905). 

Ogg,  F.  A.,  Economic  Development  of  Modem  Europe  (1917). 

Adams,  T.  S.,  and  Sumner,  H.  L.,  Labor  Problems  (1918). 


INDEX 


INDEX 


Acquisition  of  dependencies,  the, 
256. 

Acton,  Lord,  The  Study  of  Hia- 
tory,  7. 

Administrative  courts,  217,  218; 
origin  in  France,  218. 

Administrative  law:  in  refer- 
ence to  separation  of  powers, 
151;  nature  of,  216;  opera- 
tion in  France,  218. 

Agreement  of  the  People,  129. 

Alabama  claims,  101;  consti- 
tution of,  133. 

Albany  Congress,  267. 

Aliens,  suffrage  granted  to,  223. 

Allison,  History  of  Europe,  94. 

Alternative  vote,  229. 

Amendment  of  Constitution,  131, 
132,  135,  223;  Switzerland,  137. 

American  Revolution,  v.  Revo- 
lution, American. 

Analytical  school,  55,  56. 

Anglo-French  treaty  of  1904,  103. 

Anson,  Sir  W.,  on  legislative 
procedure,  156;  Law  and  Cus- 
tom of  the  Coiuiitution,  168, 
220,  226. 

Anti-federalists,  332. 

Anti-trust  Act,  391. 

Appeal  to  CsBsar,  the,  90. 

Application  of  the  theory  of  the 
social  contract,  26;  criticism, 
29. 

Appointments  and  dismissals,  in 
U.S.  executive  branch,  203. 

Arbitration,  International,  v.  In- 
ternational Arbitration. 

Aristotle,  24;  on  patriarchal 
theory,  39;  cycle  theory,  43; 
classification  of  government, 
112;  Politics,  114. 

Arrondissement,  296,  308. 

Assessment,  v.  Local  Taxation, 
Property  Tax. 


Aulard,  Hittoire  Politique  6e  lu 
RivoltUion  Frantaite,  116,  221. 

Austin,  view  of  sovereignty,  61; 
on  International  Law,  98. 

Australia,  federal  powers  in,  249; 
constitution  of,  249,  260;  signifi- 
cant references  to,  41,  159,  166, 
232,  237,  396. 

Australian  Constitution,  provi- 
sions for  deadlock,  173. 

Austria,  163. 

Austria-Hungary,  16,  46,  123. 

Bagehot,  W.,  on  separation  of 
powers,  148;  on  legislative 
procedure,  154;  English  Consti- 
tution, the,  33,  228. 

Ballot,  double,  342. 

Barker,  Ernest,  upon  the  theory 
of  the  state,  67;  Oreek  Political 
Theory,  77;  Political  Thought  in 
England,  67. 

Bastiat,  F.,  359. 

Baty,  T.  and  Morgan,  J.  H.,  War: 
Its  Conduct  and  Legal  Results,  94. 

Belgium,  163. 

Bellamy,  E.,  upon  the  wage 
problem,  371. 

Bentham,  Jeremy,  criticism  of 
social  contract,  29;  on  sover* 
eignty,  62. 

Bicameral  system,  168  et  aeq.\ 
Lecky  on,  159;  prevalence  of, 
168;  reasons  for,  160. 

BiU  of  Rights,  the  U.S.,  136. 

Blackmar,  Professor,  on  Spanish 
colonial  system,  260,  261. 

Blackstone  on  separation  of  pow- 
ers, 144. 

Blair,  Chancellor,  214. 

Bluntschli,  J.  K.,  definition  of 
political  science,  11;  criticism 
of  social  contract,  29;  view  of 
sovereignty,    52;    dassificatioD 


406 


INDEX 


of  states,  117,  118;  Theory  of 
the  State,  19. 

Boston,  government  of,  302. 

Bourinot,  Sir  J.,  on  treaty-making 
power,  276. 

Bradford,  £.  S.,  Commiaaion 
Government  in  the  American 
Cities,  304. 

Brand,  R.  H.,  The  Union  of  South 
Africa,  277. 

Brazil,  238;  v.  also  South  and 
Central  America. 

British  Columbia,  230. 

British  Franchise  Act  (1918),  222. 

British  North  America  Act,  246. 

Bryce,  J.,  on  sovereignty,  68; 
on  legislative  procedure,  165; 
Am^can  Commonwealth,  166, 
336;  Holy  Roman  Empire,  91; 
Studies  in  History  and  Juris- 
prudence, 59. 

Bundesrath,  German,  166;  pow- 
ers of,  170;  Switzerland,  185. 

Burgess,  on  origin  of  the  state,  38 ; 
on  sovereignty,  49;  Political 
Science  and  Constitutional  Law, 
16,  74,  76,  184. 

Butler,  Sir  Geoffrey,  Handbook  to 
the  League  of  Nations,  106. 

Cabinet,  British,  144,  146;  de- 
scription of,  147;  its  evolution, 
194-196. 

Cabinet  government,  distin- 
guished, 119,  123,  193  et  segq.; 
in  France.  196;  in  Italy,  198. 

Cadastre,  320. 

Canada,  senate  of,  164;  power 
of  courts,  214;  federal  powers 
in,  246;  significant  references  to, 
159,  164,  189,  246,  269,  388. 

Cantons,  of  Switzerland,  175;  v. 
also  Switzerland. 

Carlyle,  T.,  on  doctrine  of 
laissez-faire,  364. 

Casa  de  Contra taci6n,  261. 

Chamber  of  Deputies,  parties  in, 
346. 

Charters,  colonial,  127. 

Church,  relation  to  Holy  Roman 
Empire,  91. 


Churchill,  W.,  Lord  Randolph 
Churchill,  344. 

City  Government,  U.S..  301. 

Civil  liberty,  idea  of,  69. 

Civil  Service  Act,  205. 

Civil  Service,  British,  201,  202; 
U.S.,  203,  204. 

Classification  of  existing  states, 
120. 

Closure  in  House  of  Commons, 
168;  in  U.S.  Senate,  167. 

Colonial  Government,  v.  Colo- 
nies. 

Colonial  policy,  British,  261; 
British  in  nineteenth  century, 

267  et  seqq.;  French,  261. 
Colonies,     government     of,     268 

et  segq.;  area  of,  268;  methods 
of  acquisition,  256,  267;  of 
ancient  world,  268;  in  Amer- 
ica, 260  et  seqq.;  self-governing, 

268  et  seqq.;  British  attitude 
towards,  269  et  seqq.;  present 
British  system,  271  et  seqq.; 
crown,  273;  representative,  274; 
responsible,  275;  relation  of 
British  to  home  government, 
276  et  seqq.;  recent  colonial 
expansion,  281  et  seqq.;  France, 
281,  282;  Germany.  282,  283; 
U.S.,  284. 

Colorado,  constitution  of,  133. 

Commission  Plan,  303. 

Committee  of  Public  Safety,  185. 

Common  faith,  not  a  requisite,  18. 

Common  law,  57. 

Commons,  House  of,  procedure, 
165,  168;  closure,  168;  con- 
stitutional powers  of,  168, 170. 

Commune,  294. 

Compact,  governmental,  25. 

Confederacy,  Southern,  236. 

Confederation,  Articles  of,  235, 
244. 

Congress,  Continental,  235;  pow- 
ers of  U.S.,  245,  246. 

Constitution,  122  et  seqq.;  writ- 
ten, 124  et  seqq.;  relation  to 
courts  of  law,  131,  132;  amend- 
ment of,  134-37;  scope  of, 
132  et  seqq.;  of  Alabama,  133; 


INDEX 


407 


of  Ohio,  133;  of  Colorado,  133; 
of  Switzerland,  134;  made  by 
convention,  136;  provisions  in 
state  constitutions  for  direct 
legislation,  177;  U.S.,  inter- 
pretation of  by  the  courts, 
252. 

Constitutional  law,  134. 

Constitutional  monarchy,  188. 

"  Contrat  Social,"  28. 

Convention,  337. 

Council  of  Four  Hundred,  174. 

County,  U.S.,  298  et  aeqq. 

Courts  of  law,  power  to  interpret 
constitution,  213. 

Covenant  of  the  League  of  Na- 
tions, 106-09. 

Crown  colonies,  273. 

Cuba,  120,  165. 

Cunningham's  Growth  of  English 
Industry  and  Commerce,  359. 

Curtis,  L.,  Constitutional  History 
of  the  United  States,  136;  The 
Problem  of  the  Commonwealth, 
280. 

Cycle,  the  Aristotelian,  43 

Czecho-Slovakia,  18. 

Dante,  on  the  papacy  and  em- 
pire, 90. 

Dareste,  F.  R.,  Les  Constitutions 
Modemes,  123. 

Dawson,  W.  H.,  Protection  in 
Germany,  389. 

Declaration  of  Paris,  94. 

Declaration  of  the  Rights  of  Man, 
71. 

Definition  and  scope  of  political 
science,  3. 

Democracy,  progressive  growth  of, 
46,  47. 

Democratic  Party,  333. 

Denmark,  163. 

Department,  French,  295,  307. 

Departments  of  executive  gov- 
ernments, 199  et  seqq. ;  table  of, 
206. 

Dependencies  of  the  United 
States,  284. 

Deploige,  The  Referendum  in 
Switzerland,  177. 


Dicey,  A.  V.,  on  sovereignty,  61. 

Dicey,  E.,  definition  of  con- 
stitution, 122;  on  responsibility 
of  executive  officers,  212. 

Direct  legislation,  173;  in  the 
United  States,  177  et  seqq. 

Direct  nomination,  340  et  seqq. 

Disraeli,  on  colonial  policy,  270. 

Distinction  between  state,  so* 
ciety,  government  and  nation, 
15. 

Distribution  of  power  between 
the  two  houses  of  a  legislature, 
167;  in  federal  states,  242. 

Divine  origin  of  the  State,  32. 

Dual,  or  divided,  sovereignty,  65, 

Ducrocq,  Cours  de  Droit  Admin- 
istratif,  309. 

Dunning,  W.  A.,  History  of 
Political  Theories,  Ancient  and 
Mediaxal,  10,  91. 

Dupriez,  Les  Ministres  dans  let 
Principaux  Pays  d' Europe,  196. 

Education  Act,  England,  306. 

Egerton,  Short  History  of  BrUith 
Colonial  Policy,  263,  265. 

Elective  executives,  189. 

Electorate,  218  et  seqq. 

Ely,  TaxcUion  in  American  State* 
and  Cities,  315;  Socialism  and 
Social  Reform,  376;  Monopoliet 
and  Trusts,  390. 

Embargo,  252. 

England,  colonial  policy  of,  261; 
local  government  in,  304  et  seqq. 

English  Revolution  of  1688, 143. 

Esprit  des  Lois,  143. 

Essential  attributes  of  the  State, 
12. 

Evolution,  general  features  of 
political,  45. 

Executive  (branch  of  govern- 
ment), 141;  the,  181  et  seqq.; 
plural  executives,  184;  state 
governments  of  U.S.,  198; 
hereditary,  186-88;  elected, 
189  e<  seqq.;  responsibility  to 
the  courts,  211. 

Executive  power,  distinguished, 
141. 


408 


INDEX 


Factory  acts,  363,  364. 

Factory  laws  modern,  397  et  seqq. 

Federal  government,  distin- 
guished, 119,  232  et  seqq. ;  Greek 
federation,  234 ;  classification  of, 
237 ;  distinguished  from  confed- 
eracy, 238  et  seqq.;  sovereignty 
in,  238;  distribution  of  federal 
power,  244-50;  U.S.,  245-46; 
Canada,  246;  German  Empire, 
248. 

Federal  Trade  Commission,  392. 

Federalist,  the,  on  separation  of 
powers,  145. 

Federalists,  332. 

Federations,  different  kinds  of, 
235. 

Feudalism,  17. 

Figgis,  J.  N.,  The  Divine  Right  of 
Kings,  33;  Churches  in  the 
Modem  State,  66. 

Filmer,  Sir  Robert,  33. 

Finance  Bill  of  1909,  172. 

Fiske,  J.,  on  separation  of  pow- 
ers, 152;  Critical  Period  of 
American  History,  136;  Civil 
Government  in  the  United 
Slates,  152,  177. 

Force,  theory  of,  34. 

Fowler,  W.,  The  City-State,  115. 

France,  cabinet  government  in, 
196;  colonial  policy  of,  261; 
recent  colonial  expansion  of, 
281,  282;  local  government  in, 
307  et  seqq.;  significant  refer- 
ences to,  47,  54,  74,  135,  148, 
163, 166, 193,  218, 289, 345. 

Free  trade,  361 ;  critique  of,  382. 

Freeman,  W.,  on  Achaean  league, 
234. 

French  Revolution,  illustrating 
cycle  of  government,  116;  re- 
ferred to,  51,  185,  220,  222. 

Fundamental  Orders  of  Connec- 
ticut, 128. 

Fundamental  Statute  of  Italy,  130. 

Gareis,    Allgemeinea    Staatarecht, 

119. 
Gamer,    L.    W.,   Introduction    to 

Political  Science,  15,  119, 


General  council,  in  French  local 
government,  307. 

German  Confederation,  236,  244. 

German  Empire,  federal  powers 
in,  247. 

German  Social  Democrats,  374. 

Germany,  ministers,  197;  courts 
in,  215;  federal  units  of,  241; 
pre-war  colonial  expansion,  282, 
283;  significant  references  to, 
18,  46,  169,  196,  213,  216,  221, 
244,  247,  374,  388. 

Gierke,  O.,  Political  Theories  of 
the  Middle  Ages,  34 ;  Fundament 
tal  Concepts  of  Public  Law, 
83. 

Gladstone's  Home  Rule  Bill(1893); 
171. 

Goodnow,  F.,  Politics  and  Ad- 
ministration, 150;  Comparative 
and  Administrative  Law,  216, 
217. 

Government,  distinguished  from 
state,  society,  and  nation,  15 
et  seqq. ;  province  of,  353  et  seqq. 

Governmental  compact,  25. 

Great  Britain,  significant  refer- 
ences to,  47,  53,  62,  74,  124,  126, 
134, 147, 151, 162, 170, 184, 187, 
199,  201,  210,  223.  237,  304, 
343,  360. 

Great  Britain  and  the  U.S.,  arbi- 
tration of  disputes  between,  106. 

Great  Illusion,  The,  book  by 
R.  N.  A.  Lane  (Norman  Angell), 
104. 

Great  War,  effects  of,  46,  73,  110, 
123,  126,  159,  163,  169,  189, 
215,  225,  255,  280,  282,  297, 
310, 347,  348,  376,  378. 

Greece,  ancient  colonies  of,  258. 

Greeks,  international  relations  of, 
89;  significant  references  to, 
4,  16,  19,  23,  47,  115,  234,  268. 

Grey,  Lord,  Colonial  Policy,  272. 

Grotius,  on  international  law,  92 ; 
De  Jure  Belli  ac  Pads,  92. 

Group  system,  of  party  govern- 
ment in  Europe,  345  et  seqq. 

Gumplowitz,  on  organic  theory, 
83. 


INDEX 


409 


Hague  tribunal,  101-05. 

Haiti,  76. 

Hailer,  L.  v.,  on  origin  of  govern- 
ment, 36,  37. 

Hare,  T.,  on  representation  of 
minorities,  227. 

Hare-Spence  system,  229. 

Hart,  A.  B.,  Actual  Government, 
333. 

Hawaii,  284. 

Hearn,  Government  of  England, 
195. 

Hereditary  executives,  186. 

Hereditary  principle,  in  the  com- 
position of  the  upper  house  in 
national  legislatures,  162  et  seqq. 

Historical  or  evolutionary  view 
of  the  state,  38. 

Hobbes,  T.,  26;  on  external  re- 
lations of  states,  86. 

Hobbes,  Locke  and  Rousseau, 
upon  the  social  contract,  25. 

Hobson,  Evolution  of  Modem 
Capitalism,  359. 

Holland,  B.,  Imperium  et  Libertaa, 
270. 

Holland,  T.  E.,  Elements  of  Juria- 
prudence,  12,  13,  15. 

Holy  Roman  Empire,  17. 

Home  Rule  Policy  (1886),  348. 

Hours  of  work,  regulation  of,  398. 

House  of  Commons,  v.  Commons, 
House  of. 

House  of  Lords,  v.  Lords,  House 
of. 

Humboldt,  W.  von,  on  scope  of 
government,  356. 

Hume,  David,  criticism  of  social 
contract,  29. 

Humphreys,  J.  R.,  on  proi)or- 
tional  representation,  228. 

Hungary,  nature  of  constitution, 
123,  124,  163,  216. 

Ideal  state,  the,  18. 
Imperial  federation,  279-81. 
India,  government  of,  189,  277. 
Individualism,   353    et    seqq.;    in 

U.S.,  357;  J.  S.  Mill  on,  .357. 
Industrial  commission,  on  prop 

erty  tax,  322  et  seqq. 


Industrial  revolution,  358  et  seqq. 

Infant  industry  argument,  the, 
384.  i 

Initiative,  173  et  seqq. 

Instrument  of  government,  the^ 
129. 

Insurance,  state,  397  et  seqq. 

International  arbitration,  100  «< 
seqq.;  v.  also  League  of  Nations; 
examples  of,  101;  treaties  re- 
specting, 102-04. 

International  law,  86  et  seqq.; 
definition  of,  87,  88;  modern 
period  of,  91;  scope  of,  95;  of 
peace,  96;  propriety  of  the 
term,  96. 

International  Peace  Bureau  of 
Berne,  102. 

International  relations,  division 
into  three  periods,  88. 

Interpellation,  346. 

Interstate  Commerce  Act,  395. 

Iron  Law  of  Wages,  368. 

Italy,  senate  of,  164;  cabinet 
system  of,  198;  significant  ref- 
erences to,  18,  75,  130,  148,  163, 
187,  198,  346. 

Jackson,  Andrew,  204,  333. 

Janet,  P.,  defines  Political  Science, 
11. 

Jebb,  R.,  The  Imperial  Confer- 
ence, 279;  The  Britannic  Ques- 
tion, 280. 

Jellinek,  G.,  definition  of  history, 
8;  classification  of  federation, 
237;  Allgemeine  Slaatslehre,  83, 
119;  Recht  des  Modemen  Staates, 
99. 

Jenks,  E.,  on  patriarchal  theory, 
40;  military  origin  of  the 
state,  44;  on  government  of 
Victoria,  173;  History  of  Poli- 
tics, 40;  Government  of  the 
British  Empire,  168;  Govern- 
ment of  Victoria,  173. 

Johnson,  E.,  American  RaUway 
Transportation,  394. 

Johnson,  President,  204. 

Judges,  tenure  of  British,  209; 
tenure  of  U.S.,  209;  France,  210. 


410 


INDEX 


Judicial  power,  distinguished,  141. 
Judiciary,  208  et  eeqq.;  functions 

of.  209,  210. 
Jugo-Slavia,  18. 
Jurisprudence  defined,  12. 
Jus  Feciale,  89. 
Jus  Gentium,  90. 
Justice  of  the  Peace,   England, 

304. 

Kant,  view  on  social  contract,  31 ; 

on  individualism,  356. 
Kent,  Commentaries,  95. 
Kimball,  E.,  National  Government 

of  the  United  States,  156,  184, 

205,  252,  336,  392. 

Laissez-faire,  doctrine  of,  358; 
Carlyle  on,  364. 

Landesgemeinde,  174. 

Lassalle,  F.,  375. 

Law  and  right,  meaning  of,  49. 

Law,  nature  of,  49  et  seqq. ;  sources 
of,  59;  international,  v.  In- 
ternational Law;  of  nature, 
92;  constitutional,  v.  Con- 
stitutional Law ;  administra- 
tive, V.  Administrative  Law. 

Lawrence,  T.  J.,  on  international 
law,  87,  88,  94. 

Leacock,  S.,  The  Unsolved  Riddle 
of  Social  Justice,  374. 

League  of  Nations,  96,  97,  99, 100, 
105  et  seqq.,  281,  398. 

Lecky,  W.  E.  H.,  on  bicameral 
system,  159;  on  British  colonial 
policy,  about  1719,  264,  266; 
Democracy  and  Liberty,  159, 
328;  History  of  England  in  the 

.    Eighieenth  Century,  264,  265. 

Legislative  power,  distinguished, 
141 ;  Story  on,  142. 

Legislature,  153  et  seqq.;  number 
of  members,  154;  procedure, 
155. 

Leroy-Beaulieu,  Traiti  de  la 
Science  des  Finances,  318. 

Leviathan,  26. 

Liberty,  69  et  seqq,;  different 
meanings  of,  69,  70;  natural,  70; 
civil,    72;    constitutional,    74; 


national,  73;  in  the  U.S.,  74; 
in  Great  Britain,  75 ;  in  France, 
Italy,  etc.,  75. 

License  taxes,  324. 

Lieber,  F.,  on  liberty,  71. 

Limited  voting,  228. 

Local  government,  288  et  seqq.; 
distinguished  from  central,  289- 
91;  areas  of,  291  et  seqq.; 
United  States,  294;  France, 
294;  Saxon,  295;  local  auton- 
omy, 296  et  seqq.;  England, 
304;  Saxon,  306;  France,  307 
ei  seqq.,  312;  Prussia,  310. 

Local  taxation,  U.S.,  311  et 
seqq.;  England,  316-18;  France, 
318-21;  Prussia,  321,  322; 
reform  of,  322  et  seqq. 

Locke,  J.,  25. 

Lodge,  Short  History  of  the  English 
Colonies  in  America,  266. 

London,  government  of,  307. 

Lords,  House  of,  British,  162; 
powers  of,  168;  constitutional 
powers,  168,  170. 

Lords,  House  of,  Prussian,  163. 

Louisiana  purchase,  252,  257. 

Low,  Sidney,  Governance  of  Eng- 
land, 187. 

Lowell,  A.  L.,  on  separation  of 
powers,  152;  on  Swiss  federal 
government,  248;  Govemmenta 
and  Parties  in  Continental 
Europe,  130,  169,  248;  Govern- 
ment of  England,  194,  225,  343; 
Essays  on  Government,  152. 

Mackenzie,  J.  S.,  Introduction  to 

Social  Philosophy,  77,  84. 
Madison,  President,  204. 
Maine,  Sir  H.,  criticism  of  Aua- 

tinian  School,  55,  90,  353  et  seqq. 
Maitland,  F.  W.,  Political  Theories 

in  the  Middle  Ages,  67. 
Mallock,  W.  H.,   The  Limits  of 

Pure  Democracy,  353. 
Malthus,  R.,  359. 
Marbury  vs.    Madison,   case   of, 

214. 
Marshall,    Chief-Justice,    95;   on 

implied  powers,  252. 


INDEX 


411 


Marx,  theory  of  origin  of  the 
Btate,  44;  doctrines  of,  367, 375. 

Massachusetts,  charter  of,  127, 
262. 

Matriarchal  theory,  39. 

May,  Sir  T.  Erskine,  Lord  Fam- 
borough,  on  origin  of  parties, 
330. 

Mayflower,  30. 

Mayflower  Ck>mpact,  128. 

M'Kechnie,  on  sovereignty,  61; 
on  organic  theory,  61,  64,  79. 

McLennan,  J.  F.,  on  matriarchal 
theory,  40. 

Mcrriam,  C.  E.,  History  of  the 
Theory  of  Sovereignty  since  Rous- 
seau, 241 ;  History  of  American 
Political  Theories,  367. 

Mexico,  165. 

Michel,  L'IdSe  de  VEtat,  366. 

Middle  Ages,  25,  34. 

Military  and  economic  factors  in 
evolution  of  the  State,  44. 

Mill,  J.  S.,  Principles  of  Political 
Economy,  357,  .385;  The  Sub- 
jection of  Women,  222. 

Minorities,  representations  of, 
226  et  seqq. 

Mohl,  classification  of  states,  118. 

Mongredien,  A.,  History  of  the 
Free  Trade  Movement,  361. 

Montesquieu,  classification  of 
states,  117;  on  separation  of 
powers,  143,  191. 

Moore,  H.,  The  Commonwealth  of 
Australia,  249. 

Morris,  Gouvemeur,  on  Constit- 
uent Assembly,  154. 

Morrison,  J.  L.,  British  Suprem- 
acy and  Canadian  Self-Govern- 
ment,  269. 

Municipal  control,  401-02. 

Munro,  W.  B.,  The  Government 
of  American  Cities,  303,  336. 

Napoleon,  19,  116,  126. 
Nasmyth,  G.,  Social  Progress  and 

the  Darwinian  Theory,  363. 
Nation,  distinguished  from  state, 

society,    and    government,    16 

et  seqq. 


Nations,  League  of,  v.  League  of 
Nations. 

National  convention,  for  nomina- 
tion of  U.S.  President,  337. 

Nature,  state  of,  22, 28;  law  of,  92. 

Nature  of  executive,  legislative 
and  judicial  power,  141. 

Navigation  Acts,  263;  rei>eal  of, 
361. 

Netherlands,  163,  168. 

Neutral  commerce,  94. 

New  England  federation,  242. 

New  South  Wales,  230. 

New  York  City,  government  of, 
302. 

New  York,  State,  Constitution  of, 
301. 

New  Zealand,  230,  400. 

Nomination,  v.  Direct  Nomina- 
tion. 

Nordhoff,  C,  Tfie  Communistic 
Societies  of  the  United  States, 
379. 

Norman  Conquest,  190. 

Norway,  163,  238. 

Ochlocracy,  116. 
Octroi,  318,  321. 
Odgers,    Dr.    W.,    on    areas    of 

local  government  in  England, 

296,  318. 
Ogg,  F.  A.,  The  Governments  a/ 

Europe,  177. 
Ohio,  constitution  of,  133. 
Open,  and  closed,  primaries,  341. 
Orange  Free  Stete,  275. 
Oregon  Blue  Book,  180. 
Oregon  system  of  direct  legisla' 

tion,    179   et  seqq.;   system   of 

taxation,  323. 
Organic  theory  of  the  State,  76; 

criticism,  78. 
Oriental  despots,  66. 
Origins  of  state,  21;  divine  origin 

of  state,  32  et  seqq. 
Ostrogorski,  Democracy    and    the 

Organization  of  Political  Parties, 

344. 
Ottoman    Empire,    independence 

and  integrity  guaranteed  (1856). 

93;  v.  also  Turkey. 


m 


INDEX 


Paine,  T.,  on  hereditary  princi- 
ple, 161. 

Papacy,  relation  to  Holy  Ro- 
man Empire,  90. 

Paris,  treaty  of,  93. 

Parish,  England,  306. 

Parliament,  British;  sovereignty 
of,  53,  62;  supremacy  of,  212. 

Parliament  Act  of  1911,  172. 

Parliamentary  government,  dis- 
tinguished, 119,  192  et  seqq. 

Parties,  political,  organization  of 
in  U.S.,  332  et  seqq.;  in  Great 
Britain,  343  et  seqq.,  347  et  seqq. ; 
France,  345;  Germany,  345, 347. 

Party  government,  326  et  seqq.; 
Goldwin  Smith  on,  327;  origins 
in  England,  330;  origins  in  U.S., 
332;  continental  Europe,  345 
et  seqq. 

Patriarcha,  33. 

Patriarchal  theory,  39. 

Paulsen,  Immanuel  Kant,  31. 

Payne,  E.  J.,  History  of  European 
Colonies,  271. 

Peace  conferences,  Hague,  102 
et  seqq. 

Peace  Treaty  of  1919,  398. 

Peerage,  of  United  Kingdom, 
162;  Irish,  162;  Scotch,  162. 

Pensions,  old  age,  397  et  seqq. 

Personality  of  the  State,  80; 
criticism,  83. 

Philippines,  cession  of,  257; 
government  of,  284-85. 

Plantation  covenant  of  New 
Haven,  30,  128. 

Plato,  24;  cycle  theory,  43. 

Plebiscite,  175. 

Plenary  conference  at  Paris 
(1919),  105. 

Poland,  18. 

Poles,  liberation  of,  73. 

Political  evolution,  some  general 
features  of,  45. 

Political  science,  definition  of,  3; 
scope  of,  4,  5;  relation  to 
history,  6,  7;  relation  to  politi- 
cal economy,  8;  relation  to 
constitutional  law,  9;  its  essen- 
tial attributes,  12. 


Political  sovereignty,  criticism  of 

various  theories,  63  et  seqq. 
Pollock,  Sir  F.,  on  development 

of  law,  99. 
Polybius,  on  separation  of  pow- 
ers, 143. 
Poore,  Charters  and  Constitutions, 

127. 
Populist  party,  the,  334. 
Porto  Rico,  284. 
Portugal,  colonial  expansion  of, 

259. 
Prefect,  307,  308. 
President,  France,  190,  193. 
President    U.S.,    189;    term    of 

ofiBce,  191. 
Presidential  government,   192  e( 

seqq.;  in  Italy,  198. 
Primary,  336;  primary  law,  340 

et  seqq. 
Progressive  party,  the,  334. 
Property  tax,  311  c<  seqq. 
Proportional  Representation,  228- 

30. 
Protection,  theory  of,  383  et  seqq. ; 

modem  protective  tariffs,  388, 

389. 
Protective  tariffs,  modern,  388. 
Proudhon, 371. 
Prussia,     ministers,     197;     local 

government  in,  310;  significant 

references  to,  126,  132, 135, 188, 

193,241,292,310,321. 
Puritan  colonies,  7,  18,  127. 

Quebec  Act,  268. 

Radicalism,  379. 

Railroad  Legislation,  389  et  seqq.; 
rates,  393,  394;  commissioDB, 
396. 

Ransome,  C,  Rise  of  Constitu- 
tional Government,  195. 

Recall,  180  et  seqq. 

Reconstruction  of  Europe  (1919), 
18,  46. 

Referendum,  173  et  seqq. 

Reform  acts;  Act  of  1832,  224; 
Act  of  1867,  224. 

Reformation,  91. 

Reichstag,  former  parties  in,  347. 


INDEX 


4U 


Belatlon  of  the  courts  to  the 
executive  and  to  the  legislature, 
211. 

Relation  of  i>olitical  science  to 
other  sciences,  6;  states  to  one 
another,  86  et  seqq. 

Representation  of  the  People 
Act,  224,  230. 

Representative  colonies,  274. 

Republicans,  332,  333. 

Responsible  government,  distin- 
guished, 119;  in  British  colonies, 
269. 

Revolution,  American,  264  et  seqq. 

Ricardo,  D.,  359. 

Rights  of  Man,  the,  161. 

Rights  of  Man,  French  declara- 
tion of,  71. 

Ritchie,  D.  G.,  on  sovereignty, 
61,  64;  on  liberty,  69;  Darwin 
and  Hegel,  f25;  Natural  Rights, 
92;  Principles  of  State  Inter- 
ference, 61. 

Rogers,  Sir  F.,  on  colonial  policy, 
271. 

Roman  Empire,  45,  89,  91,  258, 
318. 

Roman  law,  24. 

Rome,  fall  of,  19. 

Ross,  G.  W.,  The  Senate  of 
Canada,  170. 

Rousseau,  J.  J.,  25,  70;  classifi- 
cation of  states,  117. 

Russia,  significant  references  to, 
46,  64,  124. 

Russo-Japanese  War,  ip2. 

Salisbury,  Lord,  on  international 

law,  98. 
Samoa,  101. 
SchaflBe,  A.,  on  organic  theory, 

82  et  seqq.;  criticism  of  organic 

theory,  83,  84. 
School  district,  England,  305. 
Schouler,   History  of  the    United 

States,  388. 
Secession,  240. 

Secretary  of  State,  U.S.,  200. 
Seeley,  J.  R.,  6,  73. 
Seignobos,    Political    History    of 

Europe,  244. 


Self-government,  granted  to  Brilh 
ish  colonies,  268,  274  et  seqq.; 
local  in  England,  304  et  seqq. 

Seligman,  Essays  on  Taxation, 
316. 

Senate,  Canada,  164;  Italy,  164; 
Cuba,  165;  Brazil,  166;  Aus- 
tralia, 165;  Belgium,  165; 
French,  166;  powers  of  U.S., 
169;  powers  of  Canadian,  170; 
relation  to  cabinet  in  France. 
196. 

Separation  of  powers,  in  America, 
145;  in  Massachusetts  consti- 
tution, 145;  in  federal  Constitu- 
tion of  U.S.,  146, 149 ;  in  France, 
147;  in  existing  governments, 
147;  analyzed  by  Bagehot, 
148;  absent  in  French  govern- 
ment, 148;  absent  in  Italian 
government,  148;  criticism  of, 
151 ;  procedure,  154  et  seqq. 

Sherman  Act,  the,  391. 

Sidgwick,  H.,  Elements  of  Politics, 
62;  Development  of  European 
Polity,  235;  Principles  of  Polit- 
ical Economy,  358. 

Simonet,  TraiU  EUmentaire  du 
Droit  Public,  169,  216,  309. 

Smith,  Adam,  359,  384. 

Smith,  Goldwin,  on  direct  legis- 
lation, 175;  on  U.S.  Constitu- 
tion, 240;  on  party  government, 
327. 

Social  contract,  21  et  seqq. 

Social  Democrats,  the  German, 
374  et  seqq. 

Socialism,  366  et  seqq.;  pro- 
gramme of,  370;  in  Germany, 
374  et  seqq.;  France,  377; 
England,  378;  U.S.,  379. 

Socialist  parties  in  the  U.S.,  334, 
379. 

Socialistic  theory,  366. 

Society,  distinguished  from  state, 
government,  and  nation,  15  et 
seqq. 

Sociology  defined,  11. 

South  Africa,  230,  276,  277. 

South  and  Central  America, 
republics  of,  190, 211, 232. 


414 


INDEX 


Southern  Confederacy,  235. 

Sovereignty,  49  et  seqq.;  location 
of,  53  et  seqq.;  in  British  Em- 
pire, 53,  64;  in  U.S.,  64;  in 
France,  55;  i>oIitical,  60;  dual 
or  divided,  65;  in  federal  gov- 
ernment, 238;  criticism  of  doc- 
trine of,  55;  in  existing  govern- 
ments, location  of,  53. 

Spain,  colonial  system  of,  259, 
260;  significant  references  to, 
100,  163,  259. 

Sparta,  kings  of,  185. 

Special  executive  departments, 
due  to  the  exigencies  of  war, 
201. 

Spencer,  H.,  origin  of  govern- 
ment, 34;  an  organic  theory, 
80  et  seqq.',  on  scope  of  govern- 
ment, 361;  criticism  of  organic 
theory,  83,  84;  Principles  of 
Sociology,  80;  The  Man  versxis 
the  State,  12. 

Spoils  System,  205. 

Standing  committees,  in  U.S. 
House  of  Representatives,  156. 

State,  analysis  of,  12,  13;  defini- 
tion of,  15;  distinguished  from 
society,  government,  and  na- 
tion, 15  et  seqq.;  ideal,  18; 
origin  of,  22  et  seqq.;  of  nature, 
22,  28;  divine  origin  of,  32; 
external  aspect  of,  86  et  seqq.; 
organic  theory  of,  76;  form  of, 
110  e/  seqq.;  Aristotle's  classifi- 
cation, 112  et  seqq.;  table  of 
classification,  121 ;  despotic, 
120;  democratic,  120,  modem 
functions  of,  381  et  seqq. ;  and  a 
common  faith,  the,  18;  insur- 
ance, 397. 

Stephen,  Sir  James,  on  sover- 
eignty, 58. 

Stephens,  Morse,  The  French 
Revolution,  185. 

Story,  on  legislative  power,  142. 

Suffrage,  218  et  seqq.;  British,  219; 
in  Revolutionary  France,  222; 
French,  221 ;  German,  221 ;  U.S., 
221;  woman,  222-26;  negro, 
223. 


Survival  of  the  fittest,  361. 

Sweden,  163,  238. 

Switzerland,  constitution  of,  134; 
direct  legislation  in,  174,  175; 
courts  in,  216;  history  of  its  fed- 
eration, 234;  as  a  confederacy, 
239;  federal  powers  in,  247,  248; 
significant  references  to,  134, 
163,  169,  174,  185,  216,  234, 
239,  248,  289. 

Syndicalism,  373. 

Tarde,   G.,   Les   Transformations 

du  Droit,  42. 
Tariff,  British  colonial,  275  et  seqq. ; 

insular  tariff  question,  286. 
Tasmania,  system  of  voting  in, 

230. 
Taswell-Langmead,  Constitutional 

History,  168. 
Taussig,     Tariff    History    of    the 

United  States,  388. 
Taxation,     v.     Local     Taxation, 

Property  Tax,  etc. 
Theory  of  divine  origin,  the,  32; 

of  force,   the,   34;  of  political 

sovereignty,   60;   criticism,   63, 

66;  of  protection  to  industry, 

384;  of  the  social  contract,  21. 
Tories,  330. 

Town  meeting,  177,  297  et  seqq. 
Towns,  government  of,  v.  City. 
Township,  U.S.,  297  et  seqq. 
Toynbee's  Industrial  Revolution, 

359. 
Trajan,  90. 

Treatise  on  government,  28. 
Treaty  of  Washington,  94. 
Trevelyan,     G.,     The    American 

Revolution,  265. 
Trust  legislation,  389  et  seqq. 
Turkey,  124. 

Unicameral  legislatures,  Lecky  on, 
159. 

Unit  Rule,  338. 

Unitary  government,  distin- 
guished. 119. 

United  States,  federal  powers 
in,  245-46;  dependencies,  284; 
local  governnnent  in,  291;  local 


INDEX 


415 


taxation  in,  311  et  aeqq.;  signifi- 
cant references  to,  64,  65,  74, 
130,  176,  191,  196,  199,  203, 
209,  223.  240,  289,  292,  296, 
322.  332.  378. 397. 

Upper  houses  of  legislatures,  161 
et  aeqq. 

Utrecht,  treaty  of,  93. 

Villeneuve,  ElSmenta  de  Droit 
Conatitutionnd  Francais,  217. 

Vinogradoff,  P.,  Common  Sense  in 
Law,  209. 

Von  Haller,  Restoration  of  Political 
Science,  37. 

Vote,  r.  Suffrage. 

Wages,  Iron  Law  of.  367. 
Walker,  on  Jus  Gentium,  90. 
Walpole's    History    of    England, 

363. 
Washington,  treaty  of,  94. 


Webb.  S.  and  B.,  History  of 
Trade-Unionism,  378. 

Weitling's  Die  Welt  wie  sie  ist 
und  sein  soil,  374. 

Westphalia,  peace  of.  88,  93. 

Westphalia,  treaty  of,  234. 

Whigs,  British,  330;  U.8.,  333. 

Willoughby,  W.  W.,  The  Nature 
of  the  SlaU,  6,  25,  84,  113; 
Supreme  Court  of  the  U.S.,  214. 

Wilson,  W.,  on  nature  of  law,  69; 
on  cycle  of  government,  114; 
The  State,  14,  69,  116;  Congres- 
sional Oovemment,  136. 

Wollstonecraft,  Mary,  Vindica- 
tion of  ths  Rights  of  Womeri, 
222. 

Woman  Suffrage,  t.  Suffrage. 

Woolsey,  T..  definition  of  con- 
stitution.  15.  122. 

Written  and  unwritten  oonstitu* 
tions,  129. 


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